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a. Guidelines for Setting Up an Enabling Environment for Implementation
b. Guidelines for Drafting “Implementable” Legislation
c. Guidelines for an Implementation Strategy

25. The purpose of these guidelines is to draft “implementable” water legislation, in other words, legislation that can be administered and monitored by the Government and complied with by users. The following guidelines stem from experiences in specific countries, but the essence of such experiences has been distilled in this paper in order to arrive at recommendations that can be generally applied. They are grouped in four sets: (i) guidelines for setting up an enabling environment for implementation, (ii) guidelines for drafting “implementable” water legislation; and (iii) guidelines for the implementation itself.

a. Guidelines for Setting Up an Enabling Environment for Implementation

There is no universal rule for water rights administration. Not every country, or even every region within a country, needs to establish a water rights administration system. It depends on how scarce and polluted water is and how badly reallocation is required. Furthermore, water legislation and implementation tools must be tailored to the specific history, current social, economic and political circumstances and present institutional capacity of each country.

I. Perfect is the enemy of good. Laws, regulations and implementation tools do not have to be perfect, they have to work. The simpler they are the easier it is to implement quality control from the outset.

II. Implementation of water rights administration systems cannot be achieved overnight. The duration of such a process cannot be measured in months. It must be measured in years and in many cases even in decades. This statement is supported by international experience, which shows that the design and implementation of a water rights administration system is neither a simple process nor can it be achieved overnight. The following examples illustrate this. (i) The process to adjudicate surface water rights in the state of Texas, USA5, through detailed procedures including field inspection and determination of each right, which included the participation of the Judiciary, took twenty years, and it relied on public and private organizations with strong capacity. Furthermore, several universities in the state of Texas supported the process. (ii) In Mexico, Congress approved the law on National Waters in December 1992 and it took until 2000 (eight years) to design the implementation tools as well as receive and register applications for water entitlements and for wastewater discharge permits from existing users and wastewater dischargers, following a simplified, user-friendly approach.

5 Wurbs, R. “Water Rights in Texas”. Journal of Water Resources Planning and Management, Nov.-Dec., 1995
IV. Political support at the highest level in a country is a must for successfully implementing water rights administration systems. Political support is indispensable since strong economic and political interests are usually affected when allocating or reallocating water resources. The following are arguments that may help in obtaining such support. The main benefit of such systems is that they are the most important tools for integrated water resources management. They are useful for assessing water balances in river basins and aquifers; setting up water demand management programs; offering security to investors through a reliable public water rights registry; establishing water charging systems that would make water resources management self-sufficient; and promoting water rights trading after all existing users have been registered.

b. Guidelines for Drafting “Implementable” Legislation

V. The adoption of a water policy is a good starting point before drafting new water legislation or proposing major amendments to existing legislation. It is advisable to draft or update a water policy paper and generate a thorough public debate on it. The policy should include the rationale for amending existing legislation or for drafting new water legislation as well as an outline of the legislative proposals.

VI. Ownership makes things happen. Government personnel in charge of administering and monitoring the law as well as users should participate by discussing successive drafts of water legislation and as far as possible, drafts of regulations and implementation tools (guidelines, procedures, information systems, organizational arrangements, and user and applicant manuals).

VII. Regulations and implementation tools should be drafted simultaneously. If this is done, a productive feedback is established between draftspersons and water rights administrators. Furthermore, it is advisable to go one step further and simultaneously draft all the required implementation tools.

VIII. Implementation simulation on paper provides valuable inputs to capacity building programs. Based on the draft legislation and implementation tools, the entire process for granting water and wastewater discharge permits may be pilot tested in selected river basins and aquifers. If the simulation shows insufficient governmental or user capacity, then the legislation should be redrafted, procedures simplified, and capacity- building stressed.

IX. Carry out feasibility and impact regulatory assessments. It is advisable to test a draft regulatory framework before actually implementing it. That is, carry out a “Regulatory Feasibility Assessment” (RFA) by assessing if the Government would be able to administer and enforce such framework. It is also advisable to carry out a “Regulatory Impact Assessment” (RIA) by assessing how the regulatory framework would affect different sets of users. For instance, Set A of large industries may have the technical and financial means to comply with certain stringent effluent standards, whereas Set B of smaller industries may require more time and probably less stringent standards. The RFA and the RIA could provide inputs in designing capacity-building programs for the Government, the private sector and organized water users.

X. Water rights administration requires a fine-tuned balance of regulatory, economic and participatory instruments. Water legislation that includes the three instruments usually provides a better framework for carrying out the job, but no single instrument is ever enough in itself.

XI. A realistic transition period should be considered in the law so as to give existing users enough time to comply with it. Enough time is required in order to implement a user-friendly approach so that the Government works with, not against, users. This would enable the water authority personnel to be perceived by users as knowledgeable and helpful people willing to work hand in hand with them in order to assess their water needs and make realistic assessments of the volumes of water users are in fact utilizing, and not as policemen ready to punish users for not complying with the law.

XII. A two-step approach to appeals is commendable. If the only channel for appeals is the judiciary, it may be overwhelmed by requests that could easily be handled by the water authority. Therefore, the system for the review of administrative decisions in general permitting, it is advisable that the water legislation provide for the appeal function to be carried out by the water authority itself, in the first instance.

c. Guidelines for an Implementation Strategy

XIII. Beware of amendments. Taking “imperfect” legislation as an excuse for not implementing it may tempt one to promote amendments before actually testing the legislation in practice (and some times ending with more problems than one had intended to solve). Legal reforms should be attempted only after giving implementation a chance and identifying implementation failures. Furthermore, even then no amendment should be promoted unless one is sure the identified shortcomings could be realistically overcome.

XIV. A program approach makes implementation feasible. The following planning tools should be developed with whatever information is available, in order to obtain results in a three-month to one-year period.

A “users and wastewater dischargers model” is useful in preparing a program for registering existing users and wastewater dischargers. The first approach could be a simple spreadsheet with the number of users and a rough estimate for each one of volume of water which is abstracted and of the volume of wastewater discharged and of polluting loads. When enough information becomes available the model may be improved and more sophisticated software utilized.

The “red and blue areas approach”. Usually when new water legislation is adopted it is difficult to cope with new applications because all existing users have not been registered yet. This is aggravated by the fact that in many cases, information on water quality and quantity is not reliable enough. Therefore it becomes impossible to compute a water balance or a polluting load balance in order to assess the suitability of granting a new water or wastewater discharge permit in a specific aquifer or river basin. A pragmatic approach for a transition period during which existing users would be registered and water quality and quantity information improved, is to classify river basins and aquifers as follows: (i) “Red areas”, where because of pollution, scarcity or conflicts among water users, no more new water abstraction and wastewater discharge permits should be granted; (ii) “Blue areas”, where due to the availability of enough water and appropriate conditions of receiving bodies, new developers would be welcome, and permits would be automatically granted up to a certain total abstracted volume or polluting load and; (iii) “Yellow” areas, where a study would be required to make a decision.

During the transition period all river basins and aquifers in the country would be classified either as red or blue, with no yellow areas for the time being. However an applicant could be asked to bear the cost of carrying out the required detailed studies. Granting short-duration permits could reduce harm to the environment and not hinder development. When the user asks for permit renewal, a decision would be made based on better information.

XV. Functional integration is advisable. The same organizational unit should issue authorizations for all water users, including abstraction and wastewater discharge, in order to contribute to integrated water resources management. Also, it should bring under one roof technical, administrative and fiscal responsibilities, in order to be self-sufficient, offer timely response to user applications and represent a single interface to the user.

XVI. Monitoring should be approached realistically. Monitoring of user compliance with the terms and conditions of their water abstraction and wastewater discharge permits is usually the most difficult component of water rights administration, because of lack of institutional capacity and economic resources. Since it would be impossible to monitor every single user, a feasible alternative would be to select a random sample, according to the existing capacity and thoroughly monitor the users in that sample. Transparency in the process is mandatory in order to ensure fair treatment to all users. When wrongdoing is detected, all the weight of the law should be applied and the cases should be widely publicized using the media. As capacity develops, the sample size can be enlarged.

XVII. Information and monitoring technology must fit the country’s institutional capacity. The best available “soft” and “hard” technology should be used, but only to the extent permitted by the available institutional capacity at any point in time. Also, financial and bureaucratic restrictions such as bidding procedures, procurement requirements, and feasibility to carry out sound maintenance and keep in stock enough spare parts, should be taken into account. Capacity- building requirements should be anticipated and acted upon so as to train qualified personnel before the new purchased equipment arrives.

XVIII. Quality control ensures credibility and facilitates conflict resolution. Right from the outset of implementation, quality control should be established for every step. This control should help in assessing whether administrative and technical guidelines and procedures are being properly followed, documents properly filed and decisions made which are respectful of due process requirements. This would result in a user-oriented approach and in making documentation readily available for the disposition of appeals.

XIX. Water rights trading is an efficient water allocation tool, but must not be promoted before all water users have been granted a title and registered. A reliable water rights administration system is the pre-requisite for a water rights market to develop and take hold, lest one runs the risk of making commercial transactions on inexistent water.

XX. The most important activity for achieving sustainable implementation is capacity-building. In developing countries strong and capable governments are required to ensure sustainable water resources management and particularly for running a water rights administration system. Therefore, capacity-building of the civil service, including training and keeping implementation tools simple and updated as well as maintaining an enabling working environment in order to retain capable personnel, is indispensable but not enough. Users’ capacity must also be enhanced so they will be able to comply with water legislation.

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