WATER P-NOTES ISSUE 9 JUNE 2008 44731 Regulatory Frameworks for Water Resources Management: A Comparative Study Introduction · International Conference on Water and the Environment--Development Issues for the 21st Century, Dublin, Ireland, 1992, which issued This note contains a summary, for practitioners, the Dublin Statement on Water and Sustain- of the World Bank Law, Justice, and Development able Development, including the so-called Series Book Regulatory Frameworks for Water Dublin Principles, helping to lay the foundation Resources Management: A Comparative Study for the concept of integrated water resources (2006). It examines how the regulatory frameworks management. in 16 jurisdictions worldwide have addressed the various basic issues related to water resources management, provides a comparative analysis of Comparative analysis of those issues, and highlights the essential elements of the regulatory frameworks that are emerging in regulatory frameworks for water response. resources management Most countries have laws or regulations (and in For the comparative analysis, regulatory frameworks fewer cases constitutional clauses) relating to own- for water resources management were selected from ership, management, and allocation of water. These 16 jurisdictions: Armenia, Brazil, Cameroon, China, provisions are often, however, out of date, over- Costa Rica, European Union (EU), France, Germa- complex, lacking in clarity, or fragmented. ny, Kazakhstan, Mexico, Morocco, Nepal, Senegal, In recent decades a number of international South Africa, Vietnam, and the Republic of Yemen. conferences and forums have urged governments to This section provides a comparative summary of the adopt legislation that addresses these deficiencies. approaches taken by the 16 jurisdictions as regards Two conferences in particular laid the foundation for the following eight elements: this process: · United Nations Water Conference, Mar del Plata, Argentina, 1977, whose Action Plan Statutory framework included still-relevant recommendations on for- mulation of water-related legislation, stressing Half of the jurisdictions address the issue of water in particular the integral role played by water resources in their constitutions, with several giv- within the wider economy; ing the State the authority to regulate water. Water This Note reports key messages and findings from Regulatory Frameworks for Water Resources Man- agement: A Comparative Study by Salman M. A. Salman and Daniel D. Bradlow published by the World Bank's Law, Justice, and Development Series in 2006. Readers may download the complete paper from www.worldbank.org/water. WATER P-NOTES resources are generally owned by the State or man- or a designated agency explicit responsibility for aged by it on behalf of the nation. regulation and management of water. A number of statutes designate roles for river basin authorities, water user associations, and advisory bodies. Underlying principles and priorities The underlying principles and priorities in most Financial arrangements statutes include efficient management and use of water resources; conservation and protection of The majority of the jurisdictions provide for fees water; sustainability; and equity and fairness. Some or charges to be levied for water use, and most of explicitly recognize the economic value of water. In them allow for specific user fees, including licensing all cases highest priority is given to drinking water fees, calculated according to such criteria as cost for humans. recovery and equity. Regulation of water uses Enforcement of regulations and dispute resolution Several jurisdictions permit a degree of private ownership. In all jurisdictions, individuals or entities The statutes in all jurisdictions provide for inspections have to obtain a license to use water or establish as part of the regime for enforcing water law and water systems, other than for domestic or small regulations. Dispute resolution may be through spe- uses. Licensing rules generally cover transfer or loss cial bodies, the regulatory authorities, or the courts. of water rights. Regulatory frameworks for water Protection of water resources management: Essential elements and emerging trends The statutes in all jurisdictions include provisions for protection of water against pollution, though there This section outlines the elements any country needs is much variation in the definition of the scope of to consider when debating, designing, and preparing protection, the standards set for quality, quantity, a regulatory framework for water resources manage- and flow, and the parties responsible for protection. ment, without endorsing any particular approach. Regulation of water infrastructure Process for preparing water legislation In most jurisdictions, the water statute stipulates that The process for preparing a new water law or revising licenses are required to construct water installa- an existing one should be transparent, participatory, tions or infrastructure for water use. Some jurisdic- and inclusive. A review of existing rules and regula- tions stipulate that the State is responsible for either tions should lead to the preparation of a background constructing or overseeing the construction and policy paper outlining the main policies, principles, operation of water infrastructure, particularly what is and procedures to be included in the draft law. considered as strategic infrastructure. Ownership of water resources Institutional arrangements Public ownership, control, regulation, and alloca- In most jurisdictions the main water statute assigns tion of water resources, including groundwater, to the national government (ministry or department) has emerged as the rule worldwide, with the State ISSUE 9 · JUNE 2008 acting as public custodian of water resources on Institutional arrangements behalf of the people. Capture and storage of rain- water is still generally a private prerogative. While ultimate responsibility will lie with a specified government agency, the principles of decentraliza- tion and public participation are reflected in the es- Underlying principles and priorities tablishment of a range of management authorities at basin level or lower. Lines of responsibility and The concept of integrated water resources manage- the degree of financial and administrative autono- ment is increasingly being adopted, reflecting a my of organizations should be clearly defined. more holistic view of water that includes economic, social, and environmental considerations within a sustainable framework. The top priority given to Financial arrangements personal and domestic uses is generally followed by water for livestock, with agriculture or industry next. Setting fair and appropriate charges, reflecting the position of water as both an economic good and a human right, is one of the greatest challenges of Regulation of water uses water resources management. A criterion often ap- plied is the volume of water used, sometimes with progressive price increases for larger amounts. Ir- An issue facing most countries preparing water rigation charges pose a particular challenge. legislation is how, when issuing permits, to verify and regularize water uses that existed before the legislation was adopted. Particular circumstances Private sector participation also need to be considered, such as the status of a permit in the event of a national emergency such as drought. Private sector participation can assist the water sec- tor with funding and management expertise, lead- ing to efficiency gains. A typical arrangement is Protection of water resources public-private partnership, with the public sector re- taining ownership and the private sector contracted to provide water services. Proposed legislation needs to address issues of pol- lution, wastewater discharge, land use practices, en- forcement of water quality standards, and protection Right to water of groundwater, specifying where responsibility lies. Concepts receiving increasing attention are the pre- cautionary principle and the polluter pays principle. An emerging issue related to water charges is pro- tecting poor and vulnerable segments of society by guaranteeing them a specified amount of water, Regulation of water infrastructure notwithstanding their inability to pay for it, in recog- nition of the human right to water. Legislation for building and operating infrastructure has implications for other legal issues, including construction, land acquisition, zoning, and the en- Enforcement of regulations vironment, and must address the responsibilities of both government and private owners, including wa- Enforcement provisions need to enumerate acts ter user associations. Other issues requiring consid- that are considered violations of the law and eration include resettlement, transboundary issues, specify sanctions. Violations might include illegal indigenous peoples, safety of dams, involvement of diversion or use of water, construction of unau- nongovernmental organizations, and environmental thorized works, and contravention of the provisions assessments and action plans. of a permit. WATER P-NOTES Dispute settlement ly being sought, and traditional and customary rights are gaining recognition. Water legislation needs to address the resolution of · Groundwater is posing special challenges, as disputes, including those that might arise between it often occurs below private lands and is very government agencies. Less formal mechanisms can susceptible to external influences. reduce costs and delays, with formal mechanisms reserved for more intractable disputes. · Increasing attention to financial arrangements reflects the growing belief that treating water as a socioeconomic good will assist in demand Conclusions management and rationalization of water use. · Decentralization of decision making to the ba- Water resources globally are facing tremendous sin level and participation of users in the plan- and ever-increasing pressures, including popula- ning and management of water resources has tion growth, environmental degradation, urban been embraced in a number of jurisdictions. and industrial development, climate change, and · While the wide range of institutional arrange- the growing disputes between the competing de- ments reflects the variety of country circum- mands of users. The multidisciplinary and transdis- stances, it is the authority and independence of ciplinary nature of water is reflected in the paths institutional entities that matter, and their ability followed in the search for solutions--managerial, to coordinate and integrate activities. technological, financial, social, economic, politi- cal, institutional, and legal. Legislative consider- · The challenges to water resources quality are ations regulate and underpin all others, though multiplying, and the need for an elaborate pro- the pace of development of comprehensive legal tective framework is evident. provisions related to water has been extremely · Global issues--the environment, sustainability, variable worldwide. transboundary water resources, the right to wa- While the 16 jurisdictions examined have ap- ter--are growing rapidly in importance. proached the issue in ways that reflect their own The regulatory framework for water resources legal history and national milieu, various general management will not by itself resolve existing and patterns and trends have emerged: emerging challenges and problems of the water · State ownership or custodianship of water sector, but they will not be resolved without a com- resources is gradually emerging as the rule, prehensive, flexible, and implementable regulatory though private sector involvement is increasing- framework for water resources development, man- agement, and protection. The Water Sector Board Practitioner Notes (P-Notes) series is published by the Water Sector Board of the Sustainable Development Network of the World Bank Group. P-Notes are available online at www.worldbank.org/water. P-Notes are a synopsis of larger World Bank documents in the water sector. THE WORLD BANK | 1818 H Street, NW | Washington, DC 20433 www.worldbank.org/water | whelpdesk@worldbank.org