Regulation of freshwater abstraction from, and of wastewater disposal into, surface and underground water systems, and of water rights accruing as a result, is a recurrent feature of much modern legislation for the management, development, conservation and use of water resources. Regulating water rights, however, will not per se ensure that the relevant abstraction licencing and wastewater disposal permitting materializes. Enacting legislation is one thing, implementing it quite another. It is safe to say that, in fact, implementation tends to be the Achilles heel of the process of reforming and modernizing water resources legislation.
A critical, yet so far largely neglected, facet of the implementation of water rights legislation, and of attendant licencing and permitting, is the administration of such legislation. Timely and effective administration is critical to establishing the credibility of the legislation and to ensuring public support for and compliance with it. Administration of the legislation is equally important to establishing the security of rights to water resources and hence to promoting private-sector investment. This should, however, take place in a context where meaningful protection is provided for basic human and environmental requirements while available water resources get allocated to users in an increasingly competitive environment.
This publication is equally directed at policymakers, lawmakers and government administrators. It has been written in the belief that laws and regulations will stand a serious chance of being implemented and effectively administered if the demanding complexities of the implementation and administration of systems of water rights, and of the associated licencing and permitting legislation, are factored into the drafting of the legislation. To this end, hands on experience has been systematically analyzed, salient issues highlighted and conclusions offered as preliminary guidelines for the use of lawmakers and government administrators.
However, as this publication is only a first attempt at systematically exploring novel terrain, there is no pretense to definitiveness. It is hoped nonetheless that this study will shed some light on a much neglected, yet critical, phase in the cycle of drafting, enactment, implementation and administration of new water resources legislation, and that it will stimulate additional research.
The study has been written by Hector Garduño Velasco, working under a contract with the Development Law Service. It draws heavily on the authors own experience, first as chief administrator of his home countrys new water resources legislation (Mexico), and later as consultant to FAO on the implementation of water resources licencing and permitting legislation in the Republic of South Africa, Sri Lanka and Uganda.
Lawrence C. Christy
Chief, Development Law Service, Legal Office