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Current developments in nationalwater law frameworks

Andrew Allan30th May 2011

Outline:1. Factors influencing water law change2. Permitting3. Environment4. Integrating flood management5. Land use management / source protection6. Right to Water7. Institutional coordination8. Problems9. Conclusions

Factors influencing water law change:• Increasing scarcity• Public health• Environmental concerns• Water/energy nexus• Donor demands for implementation of IWRM• Equity• International obligations• Cost recovery concerns• Climate change

population growth / movement

PermittingIn many countries (e.g. India), permitting (where it exists) is done by sector, principally regulating mainly surface waters

IWRM paradigm (the ideal, if not the practice) demands cross-sectoral permitting, combined for both surface AND ground water

Permitting (cont)• Cross-sectoral permitting increasingly present

in national legislation (incl. in Ethiopia), though in practice limited by number of factors (institutional, economic dominance of single sectors, monitoring, financial)

• Difficulty in balancing relative security of supply demanded by investors with broader protection of security of supply for environment and priority users (domestic)

Permitting (cont.) –variability

• Capacity to vary / suspend / terminate permits necessary if resource is not to be over-allocated, and for protection of key sectors (e.g. domestic, environment, strategic). Especially important in context of increasing variability

• BUT capacity to vary not always present. Question of whether compensation payable (e.g. in USA, Ethiopia) – variation can be expensive.

• Often done through imposition of protected area, controlling all uses including free uses potentially

Environment

Historically, water use rights allocation and management based on protection of property and customary rights, with environment protection incidental at best.Environment increasingly protected through e.greserves (South Africa and Ethiopia), environmental flow requirements, ecological quality standards (South Africa, EU, Australia, New Zealand)

Environment

• Still questions over which prevails in situations of extreme scarcity – but see also water use permits based on share of available water, rather than volumetric allowance (Australia)

• Problems caused by unsympathetic judiciaries used to protecting property rights and lacking appreciation of environmental protection

Integrating flood management• Increasingly moves to integrate flood management to

water use allocation regimes – e.g. in EU (Flood Directive), work done by WMO. Also in Water Resources Proclamation.

• Some states have historically virtually based water management on flood risk alleviation (Indian north east, Japan) – can lead to overly technical / construction approaches neglecting response

• Full integration demands detailed knowledge of flood risk, strategic use of land management, financial incentives – implementation immensely complicated

Land use management / source protection

• Use of land management to protect e.g. drinking water sources has been used in many places, though with less focus on groundwater. Now expanding to include buffer zones for ecosystem protection

• Increasing awareness of the economic benefits of source protection vs. cost of treatment of polluted water (e.g. New York Catskills – 90% saving), but complicated to maintain inter-community trust

• Growing recognition of long term impact of groundwater contamination and difficulty of remediation

Land use management / source protection

• Increasing focus on management of diffuse pollution (from e.g. agricultural run-off, chemical storage) through e.g. voluntary codes of conduct (England) and even enforceable standards (e.g. in Scotland)

• Problems with proving causation

• Importance of education, trust

Right to water• Limited presence currently in national legislation – Ethiopia has

qualified right (dependent on conditions) in Constitution (reflected in Water Policy); South Africa commonly regarded as most progressive state on this issue (though note jurisprudence on this)

• If right is to be implemented, importance of groundwater rises dramatically – normally clean source, available locally without costly transfer schemes or large scale reticulated water supply networks. Emphasises importance of source protection control

• More activity on this at international level than national – state practice does not reflect this priority as yet (polarising debate currently)

Institutional coordination

• Consolidation of water resource management duties ideally within single agency, but reality in many countries is sectoral splits; quality, flow and quantity separated; ground and surface waters not connected.

• Basin organisation is also ideal, though national application of this ideal often mixed. Political realities push against this, and local politics often more immediately influential than national goals

Institutional coordination• Managing institutions vertically and horizontally

is especially important in emergency situations (e.g. floods), so law must be very clear on respective functions, duties, powers and triggers for involvement

• Idea that “apogee” bodies can initiate and direct inter-sectoral coordination. Need not have full allocation responsibilities, but provide policy drawstring that pulls water relevant agencies together

Financial and human resource limitations

Quality / extent of monitoring networks; limited understanding of

surface and ground water interactions

Inward looking ministerial / departmental approaches – consequences

for WR Ministries

Capacity / power to react to resource availability

Administrative boundaries and mutual antipathies – and problems

caused by mixed reporting lines at federal and state / regional levels

Political issues associated with balance between long term planning

and short term resource management

Problems

Conclusions:• Importance of extra-legal factors – monitoring networks, data

availability, financial resources, education, political realities• Changing legislation does not work immediately• Codification (rather than sectoral approaches to regulation)

could be essential – but broad, then more specific is more realistic (South African situation is not easily replicable). Allows flexibility of standards within broad principles

• Quality of coordination critical – institutional, community, international.

• Participation of users in decision-makers is crucial for adaptability

THANK YOU!