1. Because of the dynamic complexities of the quality and quantity aspects of the water cycle, the human interventions in it and the many historical, social, ecological, economic and political circumstances that influence the use of water resources, water laws are very complex and success in implementing and enforcing them, not only in developing countries, is extremely difficult to achieve. Probably the most complex challenge water laws pose is the administration of water rights, i.e., the granting of licenses, concessions, permits and other comparable legal titles for the abstraction of water from watercourses, lakes and other expanses of surface waters, and for the extraction of groundwater; and the granting of licenses, permits and other comparable legal instruments for the discharge of waste and wastewater directly or indirectly into a water body or onto the soil.1 A perhaps more formidable challenge still is monitoring the compliance of water users with the law in general and with the terms and conditions of such licenses and permits in particular. The difficulties stem from the complexities mentioned above, but also from the fact that in many cases legislation2 is drafted with limited regard for the institutional capacity to “absorb” it. This publication deals with the administration of water rights, yet some of its findings could be of use and relevance to other aspects of water resources legislation as well.
1 In this report, when no specific term is used, “permit” refers to different kinds of water use or waste and wastewater discharge authorizations.2. During the last decade it has been recognized that the limited institutional capacity mentioned earlier has hindered the implementation not only of legislation but also of integrated water resources management. Therefore, much effort must be put in capacity-building.2 In this report, the definitions in Stefano Burchi’s, “Preparing National Regulations for Water Resources Management Principles and Practice”, Development Law Service, FAO Legal Office, FAO Legislative Study 52, Rome 1994, will be used. He calls “primary legislation” the legislative material incorporated in an Act of legislature, i.e. the highest lawmaking body or authority of the country, which states policies, principles, approaches and mechanisms. On the other hand, he defines as “regulations” the legislative material issued by the executive, empowered to do so by the primary legislation; it is “subordinate” or “subsidiary” legislation, variously styled Regulations, Rules, Orders, Decrees and By-laws set out to explain implementation details. He includes in regulations schedules annexed to the main body of some primary legislation which deal with implementation details.
3. Water rights administration is a multi-disciplinary practice which has evolved in each country showing evidence of it, according to its particular history; no theory or formal discipline of its own has emerged as yet and such practice has attracted so far virtually no attention from academia and from research institutions. Of course there are research projects going on, as well as courses being taught, on hydrology, water law, water resources systems modeling and environmental engineering. However, the author is not aware of integrated courses and truly inter-disciplinary research projects where theory and practice are blended for the benefit of water rights administration and of its practitioners.
4. According to the author’s experience, the administration of water rights calls for the following kinds of implementation tools:
· Planning models5. “Implementable” legislation is one that the Government is able to administer and enforce, and water users have the ability to comply with. Figure 1 shows how the different actors may interact in the administration of a water rights system. The specifics of such interactions as they occur in any country depend on the legal framework of that country. The figure is discussed nonetheless, for the sake of illustrating the complexities of the administration of water rights.* users and polluters model; and· Guidelines and procedures for the filing, processing, granting and control of water abstraction and waste discharge permits
* preliminary water quantity and quality balances for defining priority control river basins and aquifers.* technical· Information system- determination of ecological water requirements; and* managerial
- simple manual procedures and computer models for reviewing permit applications.- filing and processing of applications and eventual determination;
- permit registration and public consultation of the water rights register;
- user and Applicant Manual; and
- monitoring of user and polluter compliance after licenses and permits have been granted (in this case, besides managerial some technical and legal aspects must also be included).* library management software to systematically safeguard, retrieve and release all documents involved in each application;· Capacity Building* databases and follow-up systems to keep track of applications, permits and licenses; and
* databases and follow-up systems to keep track of users’ and polluters’ compliance with conditions in their permits and licences, and with “user-pays” and “polluter pays” principles.
* training; and· Communication
* enabling working environment, competitive salaries and rational promotion approach.* to enhance civil service personnel’s awareness and ownership of the new water legislation;
* to improve water-related education for children; and
* to increase public knowledge and awareness of the water resource and of water services, and to enhance the willingness to comply with the new water legislation.
Figure 1 - Actors and Interactions in the Implementation of a Water Rights Administration System
6. In the particular case of a water use, the most important actor is the water user/applicant/license holder. But other users in the same river basin or groundwater aquifer who may be affected by that use also play an important role. Stakeholders -even if they are not users of water- may also want to express their opinion regarding an application for a new water use license or permit, or file a complaint or lawsuit against an existing user, or appeal against the decision of the water authority. The water authority may deny the applicant a license or permit, or it may grant it and register it. Once the applicant is granted a license or permit, he or she becomes a legitimate and lawful user and must abstract water, discharge waste into a receiving water body and pay fees and charges according to the water legislation and the terms and conditions attached to the license or permit. The water authority keeps records and monitors the water users’/license holders’ compliance through field inspections and other appropriate means of verification. On a finding of wrongdoing, the water authority will impose a fine on the user/license holder or seek prosecution by the judiciary if a criminal offence has been committed. In addition, the water authority and/or the judiciary may hear appeals from the user/license holder or from affected third parties, lodged against a decision of the water authority.
7. Figure 2 shows the stages of the process where the author was involved in each country. The four countries provided different degrees of latitude for the author to inject his views and experience as to the water rights administration systems being contemplated in each country. That is, by the time the author visited Uganda, a water policy had been officially approved, the Water Statute, 1995 had been in force for three years and regulations under it were on the verge of being gazetted. Therefore, the author participated in defining some tools for implementation and in capacity-building. However, he also detected some flaws in the legislation that would hinder implementation and made recommendations to overcome them. In the case of Mexico, he was appointed Deputy Director-General of the national water authority (the National Water Commission), and charged with the implementation of the new Law on National Waters only months after Congress had passed it, in November 1992. He was then also in charge of drafting regulations and of designing and implementing implementation tools and a capacity-building program. When he visited South Africa, the fourth of eight successive drafts of a Bill for what eventually became the National Water Act, 1998 was being discussed. He could offer some recommendations regarding the contents of regulations, the implementation tools of the proposed legislation and a capacity-building program. In Sri Lanka, a water policy, Act and regulations were simultaneously being drafted at the time of the author’s visits. As a result, the required implementation tools of these drafts and the capacity-building needs could be anticipated, and suggestions for improving the drafts made. While Uganda was the most “rigid” case, Sri Lanka proved to be the most “flexible” as the water policy and legislation material were in the early formative stages.
Figure 2 - FAO’s Assistance with Respect to the Process Stages
8. The main issues related to the implementation of a water rights system are discussed in Chapter I, which contains a comparative analysis of the experience of the four countries.3 The issues have been systematized and analyzed according to the author’s perception, and depending on the extent to which he was involved in each of the four cases. For instance, while he was responsible for designing and implementing the water rights administration system inaugurated by the Mexican Law on National Waters, the main issue which emerged was the registration of the existing water abstractors and the recording of their entitlements in the Public Registry of Water Rights. In 1998, he assisted the Governments of Sri Lanka and South Africa in anticipating implementation problems at the time their respective water legislation was being drafted. The details of the four cases can be found in the relevant Case Studies appended to this study. A first approach to a set of implementation guidelines is presented in Chapter II. It is believed that these guidelines have value in and of themselves, in addition to serving as useful benchmarks for the drafting of “implementable” laws, that is, laws that can be administered and enforced by Government and complied with by the water resources users.
3 This publication deals with very dynamic processes in the four countries. The reader must be aware that the information reflected in this publication is as of mid-1999.
