Principles of Water Law and Administration

National and International, 3rd Edition

Dante A. Caponera, Marcella Nanni

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429879425
• Edition: 3
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

This book, which was first published in 1992 and then updated in 2007, provides a tool for dealing with the legal and institutional aspects of water resources management within national contexts and at the level of transboundary water resources. Like its two previous editions, it seeks to cover all aspects that need to be known in order to attain good water governance, but it provides updates concerning developments since 2007. These relate, inter alia, to the following:

- the "greening" of water law, which calls for the progressive integration of environmental law principles into domestic and international water law;
- the adoption, by the International Law Commission in 2008, of the Draft Articles on the Law of Transboundary Aquifers, and subsequent developments;
- the emergence of the right to water as a self-standing human right;
- the adoption of domestic water laws supporting integrated water resources management (IWRM) and enhanced public participation in planning and decision making;
- the integration into these laws of tools facilitating adaptive water management as a response to climate variability and change;
- progress in the implementation of EU law;
- recent international agreements and judicial decisions;
- efforts of regional organizations other than the EU to steer cooperation in the management of transboundary water resources and the harmonization of national laws;
- institutional mechanisms for the management of transboundary water resources (surface and underground).

Unique in its scope and nature, the book identifies the legal and institutional issues arising in connection with water resources management and provides guidelines for possible solutions in a manner accessible to a wide range of readers. Thus, it is a useful reference for lawyers and non-lawyers — engineers, hydrologists, hydrogeologists, economists, sociologists — dealing with water resources within government institutions, river basin commissions, international organizations, financing institutions and academic institutions, among other things, and also for students of disciplines related to water resources.

Chapter 1
Introduction

1.1 Water and the society

The importance of water in all aspects of human activities is well known; one basic condition for human, animal and plant survival is the availability of water. It is through the combination of water with one or more basic natural resources that other ‘secondary’ resources are made available. Water, combined with land, provides plants and forests, which, in turn, are indispensable to sustain human and animal life. Water is also an important element for social stability, and the economic development of any community, country or civilization depends largely on its availability.

Water resources are not evenly distributed, so that while in some areas of the world there may be excess water, in other areas there may be a shortage. On the other hand, the amount of water available in a state, area or basin is invariable, while water demands increase continually.

Water demands for drinking purposes augment at a faster pace than population growth, since higher standards of living require increased amounts of water for food production and other water-consuming activities, such as the watering of lawns and gardens, and for hydro-power generation and recreational purposes (golf courses, swimming pools, etc.).

In all countries, agricultural and industrial development requires the construction of hydraulic works, such as irrigation systems, reservoirs and tanks. Industries, particularly those based on chemical processes such as oil refineries, the manufacturers of synthetic materials and paper mills, utilize considerable quantities of water, in spite of water-saving technologies. Air-conditioning and air-cooling plants also use considerable amounts of water. Thus, the availability of water is both a prerequisite of and the limiting factor to the economic development of a country.

Human activities involving the use of water have direct or indirect effects on aquatic ecosystems and on the environment, which may lead to a loss of biodiversity. Changes in the environment caused by overexploitation of natural resources such as land, water and forests in turn contribute to further destruction of land and the spread of deserts. The indiscriminate dumping of urban and industrial wastes turns rivers into sewage canals, with the result that at a certain point the water is lost for further use. Landfills and waste disposal into the subsoil lead to the same result and to environmental degradation.

Irrigation practices not sustained by adequate drainage may cause siltation, soil erosion and the loss of previously good lands. Excess chemicals in the form of weed killers or fertilizers cause water contamination with disastrous consequences for downstream domestic, agricultural, fishing and industrial uses and the contamination of groundwater. Inadequate sewerage or drainage systems, or, even worse, the absence of such systems, have made water bodies carriers of waterborne diseases. The reduction of the discharge of rivers into the sea caused by excessive domestic, agricultural and industrial uses may lead to the increase of infiltration of brackish water into deltaic groundwater areas.

On the other hand, excessive floods, which are often caused by lack of watershed protection measures and by the improper use of land and forests, can destroy or render less useable what was once high-production potential land. Radioactive contamination and toxic wastes spoil atmospheric water and cause air pollution and acid rain, endangering human, animal and plant life. Finally, the overpumping of groundwater may cause its exhaustion and the intrusion of seawater in coastal areas.

Most countries have reached the end of the era during which water was considered an unlimited resource and are at the beginning of a new era in which it must be used more thrift-ily and protected from pollution. It may be said that no country, region or basin in the world can be fully satisfied with the quantity or quality of water at its disposal to meet present and foreseeable future water demands.

If not adequately planned and managed, both quantitatively and qualitatively, water use may cause detrimental side effects to the water itself and to other natural resources. Since these negative effects can be avoided through the enactment of adequate water legislation and the establishment of an appropriate water administration, it is safe to say that success in the development, protection and conservation of water resources in a country depends to a large extent on the effectiveness of its water laws and institutions. Moreover, where supplies are scant or almost fully utilized, pressures of new demands require greater efficiency in use and legal mechanisms for the reallocation of the available water from polluting and less productive uses to new and more desirable ones.

1.2 The need for a water policy, legislation and administration

As a consequence of these realities, the need is being increasingly felt for more careful consideration of all the problems related to the use of water resources, among which, in first rank, are the legal and administrative aspects involved. The need for formulating policies in support of water resources development programmes and activities is also felt.

The overall objective of a water policy is to achieve the maximization of benefits deriving from available water resources and to promote their rational and sustainable management.

A sound and well-balanced water resources policy should be viewed, as the case may be, at the national, basin, regional, local or project levels. It should be designed in line with the existing situation and requirements in any particular state, region or basin, and be concerned with finding ways and means to satisfy existing and future water demands on the basis of water availability, existing uses, water quality, estimates of population growth and technical and financial possibilities. This calls for proper water resources management planning and the allocation of financial resources where needed.

Just as a national water resources policy must be viewed within the context of an overall development plan, as it may constitute either a catalyst or a barrier to plan implementation, the institutional setup for water resources management may act either as a stimulus or as a constraint upon the national development process. Likewise, a well conceived water legislation may constitute a means to implement water policy decisions and facilitate the rational utilization of water resources, while an inadequate water legislation can act as a hindrance to this utilization.

In many cases, water legislation has come down from the days when the resource was considered to be inexhaustible. Time has overtaken the laws which gave users a free hand on waters, and advances in knowledge and technology have outdated many early types of control. The search for new sources has led to the extensive use of groundwater, to trans-basin water transfers, to water storage and distribution schemes of formerly undreamed size, to the recharging of aquifers, the recycling of water and the use of treated wastewater. Many countries have no laws which provide for the management of these new sources or for controlling these projects.

To meet new water needs, innovative water laws must be designed, not only to facilitate and achieve efficient allocation or reallocation of resources and environmental protection, but also to aim towards the attainment of social, economic and other national and international goals. Water law reform may accompany land reform, in that the redistribution of land may call for a redistribution of the water rights appurtenant to that land. Settlement schemes to open up new land to irrigation or to turn nomadic or pastoral people to farming may require special provisions in water laws or special organizations to manage or distribute water. Programmes aiming at the welfare of indigenous populations may need special provisions to enable them to compete with proposals for industrial development or commercial irrigation projects. Future holders of water rights may have different degrees of sophistication that require different treatment.

Modern planning, development and management of water resources must be based on water law principles which are implemented through legal procedures that authorize and facilitate these processes. It is important to recall that in earlier days ‘water laws’ referred mainly to legal rules governing the relationships among water uses, such as the riparian doctrine or the prior appropriation doctrine. Nowadays, the interests and objectives of governments must also be taken into consideration. As a result, the system must regulate the relationship between water users and the state and clearly identify and define the powers of the state concerning all uses of water, both public and private.

In some countries there may be a need for abolishing riparian rights and for adopting a system of state control over water. In others, the existing controls should be modernized in order to adapt the existing water rights to new priorities. Constitutional questions may need to be handled in connection with the termination of private water rights or the taking over of private waters by the state. Government institutions and agencies may have to undergo changes, this giving rise to political and legal problems when interjurisdictional conflicts for the sectorial management of water resources arise.

Due to the wide range of water utilizations, harmful effects and quality aspects, many government ministries, autonomous institutions, private corporations and individuals are involved, concerned, interested or users of water. On the other hand, legal enactments often purport to govern specific water uses, harmful effects or misuses, and each of these laws may be administered by a different ministry or department without apparent or enforced coordination. The results of this situation are the overlapping of responsibilities, inadequate or poor planning and coordination, a sectorial approach to water projects, detrimental effects of one project on another, waste of natural, financial and human resources, insecurity in the rights to use waters and uncertainty as to the successful implementation of projects.

Often water resources projects, though they may have been technically and economically well conceived, have been hampered, delayed or doomed to failure as a consequence of inadequate water legislation or other legal constraint. Investors and international agencies underwriting large projects now seek from the law the security once provided by a seemingly inexhaustible stock of water. In fact, any water development or conservation project needs capital, the investment of which is only feasible if the legal rights are well defined, water is allocated in volume, time and quality to satisfy the demand and the recovery of the capital originally invested is secured.

In the case of international drainage basins, the lack of adequate conventions and institutional arrangements renders the development of water resources projects problematic and, sometimes, is a cause of international water disputes.

For these reasons, a rational water resources policy must take into consideration the legal and institutional aspects of water resources management, both with respect to their implication in the technical, economic and social aspects and at every level of water resources management, including data collection and processing, planning, the implementation of policies and decisions and the monitoring of such implementation.

The issues connected with water administration and legislation are being increasingly dealt with by the United Nations system of agencies for the benefit of member countries. The Food and Agriculture Organization of the United Nations (FAO) was the first to initiate water law studies in 1951; the United Nations and its Economic Commissions for Asia and the Pacific (ESCAP, formerly ECAFE), for Europe (ECE) and for Latin America and the Caribbean (ECLAC) all undertake studies and activities in this field. The same applies to the United Nations Educational, Scientific and Cultural Organization (UNESCO), which, inter alia, has assisted the International Law Commission (ILC) in the preparation of the Draft Articles on the Law of Transboundary Aquifers. Through these and other organizations and financing institutions, such as the European Union, the World Bank and the Asian Development Bank, technical assistance is provided to countries wishing to modernize their water administration and legislation and for formulating national water policies.

1.3 The interdisciplinarity of the subject

It is increasingly recognized by managers, technicians and economists that water resources legislation and institutions play a key role in the planning, operation and maintenance of projects connected with water resources development, conservation and protection. The inadequacies in the laws are considered as constraints in the development of water resources, and because these constraints are usually encountered, not by legally trained people but by water managers (water engineers, hydrologists, hydrogeologists) and economists, the exact content, spirit, implications and extent of water legislation are either not well known or overlooked altogether.

On the other hand, lawyers generally lack the knowledge of basic hydrologic, technical and economic data which are indispensable for dealing with water management. Therefore, they are not always equipped to provide the legal and institutional solutions sought by water technicians and economists responsible for water management.

The science of water resources policy, administration and law is a relatively new one, necessitating an interdisciplinary approach. Starting from the technical aspects of water (hydrologic cycle, different types of uses, single or multi-purpose projects, etc.) it purports to provide water resources planners and managers with those legal and institutional tools necessary to overcome the constraints encountered by the technicians and economists.

In addition to technical aspects, socio-economic elements should be considered by the lawyers having responsibilities in the field of water resources management. These aspects are explained in the following two sections.

1.4 The physical context

Whenever dealing with water law, one should take into consideration the natural context of water and the way in which ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Biographical notes
• Preface
• 1 Introduction
• 2 Earliest water regulations and management
• 3 Roman and intermediate period
• 4 Definition and sources of water law
• 5 Existing systems
• 6 Development by region
• 7 Possible contents of and reasons for water law
• 8 Water resources planning and water law
• 9 National water resources administration
• 10 International water resources law in general
• 11 International water resources law: major issues
• 12 Developments in the law of transboundary aquifers
• 13 International water resources administration
• Index