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6. WATER


I. INTRODUCTION

Despite illustrious precedents (the Mar del Plata Water Action Plan, 1977, and the Dublin Statement on Water and Sustainable Development, 1992), water resources were not a prominent issue at the Rio Conference on Environment and Development. However, since then water resources have been gaining an ever higher profile through the work of the United Nations Commission on Sustainable Development at its 1994 and 1998 sessions and the 1997 Special Session of the General Assembly convened to debate and adopt the draft United Nations Convention on the Law of the Non-navigational Uses of International Watercourses. All called for a concerted effort to develop more integrated approaches to the management of water resources and for a stronger focus on the needs of poor people and poor nations. In a similar vein, the United Nations Millennium Declaration issued in 2000 at the specially convened UN Millennium Assembly called upon United Nations member states “to stop the unsustainable exploitation of water resources by developing water management strategies at the regional, national and local levels which promote both equitable access and adequate supplies”.

These concerns have gained further prominence and momentum due to other recent and significant developments, notably, the preparation of the World Water Vision launched at the World Water Forum held in The Hague in March 2000, which is in the nature of a policy statement; the Ministerial Declaration on Water Security in the 21st Century adopted by the parallel Ministerial Conference held in The Hague; and, most recently, the Ministerial Declaration adopted by water ministers at the Ministerial Session of the International Conference on Freshwater in Bonn in December 2001 (the “Bonn Conference”), and the Abuja Declaration on Water adopted by the water Ministers of African countries at their meeting in Abuja, Nigeria, in April 2002.

These policy pronouncements reveal that water security is the main goal inspiring the international community's emerging agenda for the 21st century. Indeed, water security has inspired the Preliminary Assessment of Policy Progress since Rio, a document prepared by the United Nations World Water Assessment Programme (WWAP) for the Bonn Conference, and the first World Water Development Report due to be presented by WWAP at Rio plus 10. In particular, in both the Bonn Ministerial Declaration and the WWAP Preliminary Assessment, water governance issues, including a supportive legal and institutional framework, are seen to play a central role in achieving water security.

II. INTERNATIONAL DEVELOPMENTS

The drafting and adoption of domestic water resources legislation is largely inspired and informed by domestic policy, but can also be guided by regional or global standards reflected in multilateral conventions, treaties and agreements, and by the rights and obligations created by them.

The only global convention on water resources is the UN Convention on the Law of the Non-navigational Uses of International Watercourses (UN Convention), which was adopted by an overwhelming majority of votes at a specially convened session of the United Nations General Assembly in May 1997, but which is not yet legally binding. Similarly, the widely respected Helsinki Rules on the Uses of International Watercourses (1966) developed by the International Law Association (ILA), and the subsequent complementary rules, are non-binding. Both the UN Convention and the Helsinki Rules carry only the moral weight that accrues to the UN Convention from the fact of its emanating from an overwhelming majority vote of states gathered at a special session of the UN General Assembly; and to the Helsinki Rules from the respect commanded by the ILA members who took part in the drafting of the Rules.

Both the UN Convention and the Helsinki Rules spell out the rights and obligations of countries in respect of the water resources of rivers, lakes and underground aquifers which form, or are crossed by, international boundary lines. That is, the scope of application of the provisions of the UN Convention and of the Helsinki Rules is limited to that fraction of the total water resources of any country which belong to rivers, lakes and underground aquifers which form, or are crossed by, international boundary lines (also commonly referred to as “transboundary water resources” or “transboundary rivers, lakes and aquifers”). Although conceivably these provisions would require domestic legislation to implement them, they are in a way too general to provide much guidance for countries wishing to review their water legislation.

By contrast, two water resources conventions in force, both of which operate on a large-scale regional level, the 1992 UN Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and International Lakes (ECE Convention), and the 1995 Protocol on Shared Watercourses in the Southern African Development Community Region (SADC Protocol), revised in 2001, carry rather more specific obligations. Although these concern only the “transboundary” water resources of state parties, they are precise enough that useful guidance can be drawn from them in the drafting of the domestic legislation concerning the totality of states' water resources. For example, under the revised SADC Protocol member states are to have domestic legislation in place providing for the licensing of water resources abstraction and for the permitting of wastewater disposal. And, under the ECE Convention, member states have undertaken to have domestic legislation in place regulating point-source wastewater disposal, and to adopt water quality objectives and water quality criteria consistent with the parameters provided in an annex to the Convention.

The European Union's Framework Water Policy Directive of 2001 is another regional instrument which is the source of binding rights and obligations for the EU member states. In contrast to the UN Convention, the Helsinki Rules and the two regional conventions mentioned earlier, the EU Directive covers all water resources in all of the EU member states, regardless of whether the resources are “transboundary” or fully domestic. EU member states are under an obligation to adapt their domestic water resources legislation to the precise regulatory, economic and institutional requirements laid down in the directive in regard to, in particular, licensing of the abstraction of water resources for use, wastewater discharge permitting, implementation of the polluter-pays and user-pays principles, the marketing of water rights and patterning of the government water administrations along river basin lines.

In addition to these global but non-binding, and regional and binding, instruments, many more multilateral and bilateral water resources treaties, agreements and conventions exist, generally covering a designated “transboundary” river, lake, basin or, more infrequently, a designated aquifer. Depending on the level of specificity of the rights and obligations which stem from them, these instruments tend to be the source of inspiration for the domestic water legislation of the states which are party to them. Significant examples of multilateral water resources treaties laying down precise enough obligations to require and inspire legislative action by member countries are the lower Mekong River Basin Treaty of 1995, the Danube Convention of 1994 and the Rhine Convention of 2000.

III. TRENDS IN NATIONAL LEGISLATION

In response largely to concern about the growing scarcity of water resources relative to projected needs in the years since Rio, and aware of the desirability of fostering greater efficiency of use while being mindful of equity and ecological considerations, the governments of growing numbers of countries have felt compelled to review their existing water laws and to prepare the blueprint of new laws. These draft bills, in a large number of cases, have since been enacted into law. A comparative analysis of these new and proposed water laws discloses a number of discrete trends, which will be presented below.

3.1. Growing Incorporation of Water Resources into the Public Domain

The last remaining vestiges of “private” groundwaters and of exclusive riparian rights in surface watercourses have been steadily eroded by the ever-expanding sphere of “public” waters. Public waters may include those waters held in the public domain (ownership) of the state, as in the water resources legislation adopted in Italy in 1994, in Morocco in 1995 and in Zimbabwe in 1998, all of which bring all groundwater resources within the public domain. Alternatively, where ownership of water is a notion repugnant to the legal system, water resources have been vested in the state in trust for the public, such as in South Africa's 1998 National Water Act, which adapts the “public trust” doctrine developed by courts in the United States. Finally, the state may be vested with superior user rights, which is the approach reflected in Uganda's 1995 Water Resources Act and in the Australian state of New South Wales' Water Management Act of 2000. Whatever the legal underpinning, the result has been to bring all or most of the nation's water resources under the scope of the government's allocative authority.

3.2. Checking Government Authority to Allocate and Re-allocate Water Resources for Use

As a result of water becoming public property - or acquiring by statute some comparable status as earlier outlined - the ownership rights of individuals have been eroded, and generally they can only claim user rights. Such rights accrue from the pronouncements of courts in adjudication-type proceedings (as in some Western states of the United States) or, as a more general trend, from a grant made by the government and recorded in a permit, licence, concession or like instrument. The relevant discretionary authority the government enjoys in making grants and allocating water has traditionally been checked by the courts of law or through the hierarchical review (appeal) opportunities available internally through the granting process.

These traditional review mechanisms are available after an allocation decision has been made and a permit granted. By contrast, a new generation of checks and balances tends to operate before such decisions and the relevant grants are made. These are basically aimed at improving the quality of decisionmaking, obviating the need for most post facto review. These new checks and balances which operate before allocation decisions stem from Environmental Impact Assessment (EIA) requirements for proposed water abstractions; water resources planning determinations; minimum flow requirements of surface watercourses; and the formal reservation of quantities of water for specific purposes.

3.2.1. Environmental Impact Assessment Requirements

EIA requirements for proposed new water abstractions have been introduced by France's 1992 Water Act, by Spain's 1999 extensive amendments to the 1985 Water Act and by Cameroon's 2001 industrial and commercial water abstraction licensing regulations. In addition, the adoption of EIA requirements for designated surface water development projects, for designated groundwater extractions and for artificial recharge projects has become mandatory, as of March 1999, for all member states of the European Union by virtue of Council Directive 97/11/EC of 3 March 1997, amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. In the Argentine province of Mendoza, regulations have been introduced in 1999 mandating the preparation of a “Water Impact Statement” by the provincial government water administration, for all water development and other projects.

3.2.2. Water Planning Mechanisms, Processes and Instruments

Water planning mechanisms, processes and instruments feature in recent water legislation as a preferred mechanism for informed, forward-looking and participatory decisionmaking with regard to the management and development of water resources, in particular for water use allocation and for pollution prevention and control. For example, the preparation and periodic review of River Basin Management Plans is a mandatory requirement for member states of the European Union in the recent EU Framework Water Directive. Prior to this directive, France introduced and regulated through the 1992 Water Act a complex water resources planning system based on General Water Plans (Schémas directeurs d'aménagement et de gestion des eaux) covering one or more basins, and on Detailed Water Plans (Schémas d'aménagement et de gestion des eaux) covering one or more sub-basins or an aquifer. Determinations under approved plans become binding on governmental decisionmaking, and at least one groundwater allocation decision reportedly has been challenged in court and quashed on the basis of its being at variance with the relevant approved basin plan.

South Australia's catchment-level “water allocation planning”, which was introduced by the 1997 Water Resources Act, fixes volumes of water that can be taken from a catchment area for use. The Act will become the source of rules for governmental allocation decisions and relevant grants of water rights. Zimbabwe's catchment-level “outline planning”, provided for in the 1998 Water Act, sets forth priorities for the allocation of water, and under the Act governmental allocation decisions cannot depart from approved outline plans. Also in the U.S. state of Texas, legislation passed in 1997 institutes a complex water planning system at regional and at state level, and gives the planning determinations a binding effect which they did not have under previous legislation.

On a less ambitious scale, New South Wales' Water Management Act of 2000 calls for the formation of statutory water resources management plans in respect of designated “water management areas”. The plans, which will be in effect for ten years at a time, are to be formed by local committees and will cover water resources allocation and sharing, environmental protection, drainage and floodplain management. In Victoria, another Australian state, recent (2001) amendments to the 1989 Water Act provide for “streamflow management plans”, which will limit total abstractions, to be prepared in respect of surface water resources under stress.

In all these cases, and others still (Morocco, South Africa and Uganda), planning determinations are not simply strategic but are fully binding on governmental water abstraction licensing decisions.

3.2.3. Minimum Flow Requirements

Minimum flow requirements seek to protect the ecology and fish life of watercourses and act as a limit on the government's abstraction licensing authority by barring any abstractions from watercourses above established limits. Minimum flow requirements may be designed specifically to protect riverine fish life, to protect the scenic and recreational values of streams and to attain ambient water quality objectives or to meet some other policy objective. Extensive amendments made in 1999 to Spain's 1985 Water Act provide for the establishment of minimum flow requirements in rivers, aimed at protecting the riverine environment. The subsequent Act approving the National Water Master Plan, adopted in mid-2001, explicitly grants such minimum flow requirements priority call on available river flows.

3.2.4. Reserving Volumes or Flows

Reserving volumes or flows for given purposes also puts limits on the government's abstraction licensing authority in that the water reserve cannot be allocated except for the stated purposes. Such a reserve features in South Africa's 1998 National Water Act, according to which the government is under a statutory duty to reserve water resources for ecological purposes or for the purposes of supplying water to satisfy basic human needs. Under Spain's 2001 Act approving the National Water Master Plan, the government has authority to set aside entire rivers, sections of rivers, aquifers or other water bodies for conservation in their pristine state (so-called “environmental reserve”). The reservation may entail a ban on the granting of water abstraction rights from the identified water bodies.

In the Australian state of Victoria, the recent amendments to the 1989 Water Act allow fixing a permissible annual volume of water which can be extracted from designated aquifers under stress, thus effectively limiting total groundwater extractions from such aquifers and having the same effect as a declared reserve. In Jamaica, the 1995 Water Act vests in the government authority to reserve a “source of supply” for a public purpose, and applicants for the abstraction and use of reserved water for a reserved purpose take precedence over competing applications, and override existing abstractions. Under Mexico's water legislation, the federal government has authority to set aside water resources for domestic and public water supply purposes, for the generation of hydro-power, to meet the minimum flow requirements of watercourses and to protect aquatic ecosystems in general. The federal government is under a general obligation to see to it that the reserved water resources are kept in a quantitative and qualitative state which is consistent with the objectives of the reservation.

3.3. Fostering Controlled Trading in Water Rights

Increasingly, lawmakers have been turning to trading in water rights in the pursuit of efficiency of water allocation and use. Because trading of water rights empowers users to make allocative decisions instead of government, part of the expanding allocative authority vested in the government, which was observed earlier, is returned to the users.

Unregulated water trading is known to operate perhaps only in Chile. There, water is regarded as a commodity which can be freely traded through the sale of the relevant government grants. Yet, in the years since Rio, a fierce debate has been raging due to government proposals to penalize the hoarding (non-use) of water, on the logic that incentives are needed to ensure that water is put to actual use. In other countries, regulations on water trading seek to minimize the possibilities of unwelcome “third-party” effects, such as effects on the environment, on the interests of the area from where water is taken for use in another area, on cultural values, on resource availability to meet priority requirements and, generally, on marginal groups.

The trend towards a regulated approach to trading of water rights is borne out in the statutory and case law of the Western United States, and in the water legislation of such diverse jurisdictions as Mexico (1992), the Canadian province of Alberta (1996), the Australian states of South Australia (1997) and New South Wales (2000), South Africa (1998) and Spain (1999).

It bears emphasizing, however, that in countries where water has traditionally been regarded as an appurtenance of the irrigated land where it is used, the trading of water rights separately from land rights is forbidden, as for example under Morocco's recent water legislation (1995). Also, under Cameroon's industrial and commercial water abstraction licensing regulations adopted in 2001, trading is not permitted as such licences are not transferable. In the Argentine province of Mendoza, where water rights cannot be traded either, under regulations issued in 1999 the available surpluses can be allocated by the provincial water administration acting as a clearinghouse between willing suppliers and willing takers of surplus water. No monetary transaction takes place between the parties, but the supplier pays half of the water abstraction charge he or she would otherwise be liable for, and the taker pays the water abstraction charge for the duration of the abstraction.

3.4. Charging for Water Abstraction

Charging for water abstraction in general, and for the extraction of ground-water in particular, seeks to influence the demand for water and constitutes the chief non-regulatory mechanism available to control water abstraction and use. It is generally practised in combination with the regulatory mechanisms described earlier, such as in all the examples reviewed below.

In Mexico, for instance, charges on industrial and municipal abstractions were levied annually even before enactment of the 1992 National Waters Law. Relevant rates are set each year by the Federal Law on Levies, and are calculated so as to reflect the relative scarcity of water resources and the different kinds of use - except for irrigation, as to which no water abstraction charges are levied. Also, in Germany, charge rates vary according to use, and tend to be higher for groundwater extraction. In France, water abstraction charging has been practised since 1964. Charges vary according to volume, kind of use, location and source - with groundwater extraction being charged at 2 to 3.5 times higher than surface water abstractions, although legislation was tabled in Parliament in mid-2001 to end the current practice of different sectors being charged different rates. As a result, industry, agriculture and households in any given area would pay the same amount per cubic metre of water abstracted. This same approach is under consideration in Portugal.

Water abstraction charging has a long history in England and Wales also, where charges are set at a level that enables the Environment Agency to cover its costs in performing its function of water custodian. The levels and rates of charges are set accordingly, and ostensibly do not seek to influence the behaviour of water abstractors. Charges are based on the annual quantity of water authorized for abstraction, not on actual volumes abstracted. No charges are levied on groundwater extractions of 20 cubic metres a day or less for agricultural purposes, whereas all other ground-water extractions are charged.

In the Netherlands, a groundwater extraction charging mechanism has been in effect since 1995, with the revenue used in part to fund research into developing groundwater policy plans and the remainder paid to the Finance Ministry as part of general taxation. In the U.S. state of Arizona, a tax is levied on all users of groundwater according to the volume consumed. The proceeds from this tax are directed to purchasing existing water rights and retiring them from use, to conducting water augmentation programmes and to sponsoring research on water conservation.

3.5. Curbing Water Pollution

Well-tested regulatory and economic instruments for the prevention and abatement of water pollution from point sources (notably, industrial outfalls and municipal sewers) feature in many recent water pollution control laws. Such instruments range from discharge permits linked to effluent quality standards and quality objectives/standards for the receiving water source, to charging for discharging waste in water bodies (the well-known “polluter-pays” principle).

The more recent statutes bear evidence of a growing concern for pollution of surface and, more urgently, underground water resources from diffuse sources, such as the runoff and drainage of cropland in rural areas. The complex and insidious threat posed by diffuse pollution sources has been addressed by the more recent generation of water laws through a shift in the focus of regulation from the discharge itself - which it would be difficult if not impossible to track down to a specific outfall - to the land use giving rise to a diffuse discharge.

Thus, cultivation practices have been increasingly attracting regulatory restrictions aimed at preventing, abating or minimizing pollution from substances such as the nitrates employed in agriculture. Just before the Rio Conference, in December 1991 the European Union adopted Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources, directing member states to designate nitrate-sensitive (or nitrate-vulnerable) areas and to draw up a code or codes of good agricultural practice. Within the designated areas, the provisions of such code or codes become mandatory for farmers. Furthermore, the polluter-pays principle mentioned earlier is making inroads in the agricultural sector, which has traditionally been impermeable to charging policies. In France, for instance, in 2001 legislation was tabled in Parliament inter alia introducing a tax on nitrogen-based pollution of water resources, whether surface or underground, from agriculture.

The diffuse impact of point sources like waste dumps and landfills is also attracting increasing attention. For instance, under a statute - technically, an amendment to the 1959 Water Rights Act - adopted in 1997 by Austria, most landfills will require a permit. The operator must provide adequate security, in particular with regard to future precautionary measures. If the precautions taken prove insufficient, the government may impose additional or alternative requirements. In extreme cases, the disposal of waste can be suspended temporarily or the landfill can even be closed. Furthermore, the government may appoint a monitoring body at the expense of the licence holder. The licence holder must submit annual reports indicating the type, quantity and origin of wastes deposited in the preceding year and the results of the monitoring programme.

Other legislation focuses not on the land use but on the area where the diffuse pollution is occurring and on specific activities that can cause or worsen pollution. In Spain, for example, under the 1999 amendments to the 1985 Water Act, the government has the authority to declare an area experiencing groundwater pollution or the risk of it as a “protected aquifer area”. In such areas, groundwater withdrawals may be limited or frozen pending the adoption of a recovery plan for the aquifer. In addition, the government's prior consent will be required for the siting of facilities, the extraction of inert materials or any other activity potentially impairing the quality of the underground water. A similar approach is reflected in the Water Management Act of 2000 of the Australian state of New South Wales, which mandates the formation by the local community of legally binding “aquifer management plans”.

3.6. User Participation in the Management of Water Resources

The formation of groupings of water users for the development and management of sources of irrigation water is widely known and provided for in the legislation of most of Latin America, Spain and Italy in Europe and many South Asian countries. Customary law regarding user participation also plays a dominant role in some jurisdictions, such as the island of Bali (Indonesia), and in many oases in the Saharan and Sahelian regions of Africa. Apart from these well-known and established trends, water users are increasingly being called upon by legislation to participate (a) in the micromanagement of water resources under stress and (b) in the internal structure of the government water administration. Both can be seen as different but complementary manifestations of a budding public-private sector partnership aimed at building consensus and support for difficult water allocation and management decisions, and at sharing government responsibilities with concerned users.

The direct involvement of users in the micromanagement of water resources under stress is a regular feature in much recent water legislation. Often, such schemes arise in connection with groundwater resources in areas experiencing accelerated groundwater depletion and/or severe ground-water pollution. In the U.S. state of Texas, Groundwater Conservation Districts were traditionally formed on petition and vote by affected property owners, but tend now, on the basis of a 1997 statute, to be formed also at government's instigation of a property owners' vote. This will generally occur where government, based on its own studies, creates a district in so-called “critical areas”, i.e., areas experiencing overdraft, insufficient supply or contamination.

Although these districts have varied powers including issuing permits, spacing wells and setting the amount of withdrawals, most have not imposed such regulatory mechanisms, instead opting for voluntary self-restraint and educational programmes. As such, they leave untouched land owners' rights to pump groundwater. Under New South Wales' Water Management Act of 2000, water users must be represented in the groundwater management committees established for the management of aquifers under stress.

In Spain, the 1999 water legislation provides for the compulsory formation of water users' groups from among the users of an aquifer, when the aquifer is being, or is at risk of becoming, overexploited. These groups are to share groundwater management responsibilities with the government, in particular in the management and policing of groundwater extraction rights. In Mexico, since 1995 a number of “Groundwater Technical Committees” (Comités Técnicos de Aguas Subterráneas - COTAS) have been established under the auspices of the Comisión Nacional de Aguas (CNA), to allow the participation of users, together with federal, state and local agencies, in the formulation and implementation of programmes and regulations for aquifer preservation and recovery. The establishment of these committees is not contemplated in the 1992 National Waters Act and, as a result, their legal status is unclear. The COTAS are consultative organizations, the decisions of which may - or may not - be taken into account by the CNA. Against this backdrop, in the state of Guanajuato, where groundwater overdraft is particularly severe, despite being in legal limbo the COTAS have been promoted with enthusiasm, and are considered as full-fledged users' organizations, covering all groundwater users and stakeholders within the aquifer.

Water User Groups (WUGs) for the management of water supply points, and Water User Associations grouping any number of WUGs, are regulated by Uganda's 1995 Water Statute. South Africa's 1998 National Water Act also provides for the formation of water user associations from among water users wishing to undertake water-related activities for their mutual benefit.

The thinking behind the establishment of river basin authorities and agencies responds, in part, to the same concern of having stakeholders take part in water-related decisionmaking. To this end, users and their interests are represented in the governmental organs which make up the structure of such authorities and agencies. Thus, for instance, under the 1999 amendments to the Water Act, Spain's River Basin Authorities (Confederaciones hidrográficas) include users' representatives in their decision-making and advisory organs. Similarly, users' representatives make up at least two-thirds of the total membership of the board of directors of France's Water Agencies (Agences de l'eau). They are also represented on the Agencies' advisory Basin Committees and Local Water Committees, which were created by the French 1992 Water Act as part of the water resources planning process at the level of sub-basins or groundwater aquifers.

Irrigators hold a minority of seats on the board of directors of Morocco's new Basin Authorities, which are being formed pursuant to the 1995 Water Act. In South Africa, water users and environmental interest groups will be represented in the decisionmaking structure of the new Catchment Management Agencies established under the new Water Act. A similar approach is reflected in Zimbabwe's 1998 Water Act, which provides for the establishment of Catchment and Sub-catchment Councils and for the representation of water users on them. In Mexico, amendments made in 1997 to the water legislation then in force have enabled the election of water users to the Lerma-Chapala Basin Council, which is a forum for coordination of the various interests at stake but does not have decisionmaking authority. Similar councils are being formed in other river basins of the country.

Under Brazil's 1997 federal Water Act, water users will be represented in the basin committees, alongside the representatives of civil society and of the federal, state and municipal governments concerned. The functions of such committees are akin to those of their Mexican counterparts. By contrast, the representation of water users in the basin committees provided for by the Australian state of South Australia's 1997 Water Act is not mandatory. However, users who possess the required professional qualifications and/or have a special knowledge of the area can be appointed to such committees, although in a personal capacity and not as representatives of any constituency.

3.7. Growing Attention to the Interface Between Statutory and Customary Water Rights

Customary law in many countries still plays an important role in water management, particularly at the community level. Customary water laws are rarely a single and unified body of norms, and vary widely from region to region, sometimes even between villages in the same region. Customary rules governing access to water have been documented in many countries, the best-known example being perhaps the allocation system of irrigation water and relevant water rights practised since time immemorial on the island of Bali, Indonesia. Another example of customary law is riparianism, which is or has been practised in a variety of forms in many common law countries.

Most recently, however, riparian rights have been increasingly replaced by statutory rights. For example, the post-Rio legislation of jurisdictions like Jamaica (1995), Uganda (1995), South Africa (1998), Zimbabwe (1998) and New South Wales (2000) adopts statutory water rights regarding the abstraction and use of water resources and eliminates ownership or possession of riparian land as a prerequisite to the claim and exercise of water abstraction rights.

Other countries fall along a wider spectrum. At one end, the Water Act (1974) and subsequent irrigation regulations (1982) of Indonesia openly acknowledge the traditional system of irrigation water allocation and rights practised in the island of Bali, and grant it equal dignity to the statutory allocation and rights system inaugurated by the legislation. In a similar vein, the 1998 Irrigation Law of Bolivia recognizes as de facto organizations water users' groups formed on the basis of customary norms. Draft legislation under consideration in Namibia, to replace the 1964 Water Act in force, does not privilege one over the other, but instead requires the government to take due account of existing customary practices and rights in granting statutory water use permits. The existence of such rights and practices not only enters the decisionmaking process leading to the grant or denial of a statutory right; it also attracts special terms and conditions to be entered in a grant of said statutory rights, for the specific purpose of protecting existing customary rights and practices. The legislation being mooted seeks to map out the scope of the interaction between statutory water rights and customary rights in general, and to minimize opportunities for conflict.

IV. CONCLUSION

What lies ahead on the agenda of water laws for the new century is the further refinement of water allocation mechanisms, which must strike a dynamic balance between equity and efficiency in allocation and use. Water allocation structures and policies must reflect the uncertainties of water availability under regulated and unregulated flow conditions, while at the same time they must take into account the security and dependability of water rights sought by users and investors. Another challenge is reconciling the development of water resources with conservation and with protection of the water quality of water bodies, not just for further use but also for the survival of water-dependent habitats.

Both these challenges call for the creative use of economic mechanisms, in addition and as a complement to robust regulation. Experience suggests that success is more likely where the laws promote the sharing of responsibility for difficult management decisions with those who stand to be affected the most by regulatory and non-regulatory water resources management mechanisms.

REFERENCES

Bogdanovic, S. 2001. International Law of Water Resources - Contribution of the International Law Association (1954-2000). Kluwer Law International, The Hague.

Burchi, S. 1994. Preparing National Regulations for Water Resources Management - Principles and Practice, Legislative Study No. 52, FAO, Rome.

Burchi, S. 2000. Current Developments in Water Legislation, 11 Water Law 3.

Burchi, S. 2001. 2001 Year-end Review of Comparative International Water Law Developments, 12 Water Law 6.

Caponera, D. 1992. Principles of Water Law and Administration - National and International. Balkema, Rotterdam.

FAO. 1999. Issues in Water Law Reform, Legislative Study No. 67, Rome.

Garduño Velasco, H. 2001. Water Rights Administration - Experience, Issues and Guidelines, Legislative Study No. 70, FAO, Rome.


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