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I. INTRODUCTION


Many countries around the world are currently moving to devolve a range of water management tasks from state agencies to participatory, autonomous, financially self-supporting water user organizations. The trend is particularly noticeable in the irrigation sector. The realisation that state agencies can not afford to effectively operate and maintain irrigation schemes has led to responsibilities being transferred to farmer-run water users' organizations, a process commonly known as 'Irrigation Management Transfer'.[1]

The water user organization (WUO) is not a new concept, however. In a number of countries legislation regulating the establishment and operation of WUOs has been on the statute books for hundreds of years.[2] Indeed, they are often so well established that their role is barely noticed within the societies that they serve, simply and efficiently undertaking the tasks for which they were created.

Apart from the operation and maintenance of irrigation systems, such tasks can include the management of polders and land drainage schemes, the maintenance of dykes and flood-defence structures, the removal and treatment of waste-water, the supply of water for domestic consumption and other uses, and the management of groundwater resources, usually in cases where an aquifer is under stress due to over-pumping. In addition, WUOs are increasingly becoming involved in water resource management and conservation.

WUOs go by a wide variety of names. Equal variety is to be found regarding their size: some are responsible for water management activities on a few dozen hectares of land, others on many thousands.[3] At first sight, long-established North American and West European WUOs providing irrigation water to prosperous commercial farmers may appear to have little in common with WUOs set up to allow small-scale farmers in developing countries to operate recently constructed irrigation schemes.

Despite these outward differences, the basic principles on which WUOs operate, as well as the legal rules that underpin those principles, are surprisingly similar. For example, WUOs:

- are governed or controlled in a participatory and democratic manner by those who benefit from, and pay, for the services that they supply;

- undertake a discrete task related to water management;

- operate on a non-commercial, or 'non-profit', basis;[4]

- are self-funding; and

- due to the public service nature of the tasks that they perform, are usually subject to some form of regulatory oversight by the state.

Furthermore WUOs are generally regulated by specific legislation, in the form of laws and codes backed up as necessary by subsidiary legislation (in the form of regulations, decrees and so forth), that generally provides for them to be established as a special type of legal entity. Much of this legislation is relatively recent, even in those countries that have a long WUO tradition.[5] The simple fact of its existence suggests that legislation has played, and continues to play, an important role in the establishment and operation of WUOs. After all, leaving aside political gimmickry, countries seldom enact legislation unless it is necessary. So what might be the contribution of legislation to the WUO sector?

Legal certainty, for a start. Legislation enables WUOs to have independent legal personality and thus to enter into legal relationships with their participants as well as with third parties. The content of such relationships can be expressed in the form of legal rules and reciprocal obligations, breach of which can be adjudicated by the courts, and enforced as necessary. As will be shown in this paper, specific legislation can also enable legal rules to be tailored to meet the specific needs of WUOs (and their participants). The importance of legal rules in the context of WUOs should not be underestimated. After all, like most co-operative institutions, WUOs are subject to a basic internal contradiction: every WUO is established on the premise that the interests of its participants are best served through mutual co-operation. But at the same time, those participants may often be in competition with each other, often for the same scarce resource. The more participants a WUO has, or the more competition there is for the use of a resource, the greater the likelihood of conflict. The existence of legal rules relating to WUOs can help to prevent or reduce conflict. Perhaps most importantly, though, specific legislation creates an appropriate enabling legal environment, the legal 'space', that WUOs need in order to be able function effectively.[6]

Curiously, while a great deal of literature has been published on other aspects of both Irrigation Management Transfer ('IMT') in general and WUO establishment and operation in particular, relatively little has been published on the topic of WUO legislation.[7] This apparent omission is all the more surprising given the current trend towards community-based common property resource management within the natural resources sector. WUOs are also community based, and they co-operatively manage common property resources in the form of both water and the infrastructure needed for its management. As such, the WUO concept, with its proven track record and developed legislative tradition, has much to offer to other natural resource sub-sectors, such as forestry and fisheries, as they start developing suitable legal frameworks to enable sustainable community based co-management.

The aim of this study is to present a preliminary comparative analysis of legislation - codes, laws, decrees and regulations - that governs the establishment and operation of WUOs. It is based on analysis of a series of 'legislative profiles' of WUO legislation[8] prepared by the Food and Agriculture Organization of the United Nations (FAO) as well as legislative texts from a number of countries around the world.[9] Examples considered are from both the common law and civil law traditions, and while every effort has been taken to include as broad a geographic coverage as possible, it is recognised that there are relatively few examples from the continent of Africa.[10] In part this is for the practical reason that few examples are available in the FAO legislative database, FAOLEX. Whether this in turn is because few African countries actually have WUO legislation is an issue that deserves further investigation.

This study takes a thematic approach to comparative analysis: rather than simply describing each country's legislation, it examines the different ways in which such legislation approaches similar issues. It is set out in sixteen parts, beginning with this introduction. Part two examines the different names conferred on WUOs in legislation, while part three considers the purposes for which WUOs may be established. The legal status of WUOs can have important implications for the manner in which they are established and operate, and this issue is considered in part four, along with the source of WUO legislation. The related issues of a WUO's 'governing document' and 'internal rules' are considered in part five.

All of the WUOs considered in this study operate on a participatory and democratic basis. Identifying actual or potential participants is the subject of part six, while the variety of procedures for WUO establishment is considered in part seven. Part eight examines the institutional arrangements within WUOs while part nine focuses on provisions conferring substantive rights and duties on WUO participants. Part ten considers legislative provisions on the sources of WUO income and financing. One of the main regulatory oversight tasks is ensuring the correct financial management of such income, which is discussed in part eleven, while part twelve examines the substantive rights typically conferred by the legislation on WUOs. In part thirteen, legislative approaches to WUO dissolution and re-organization are considered, while part fourteen describes the issue of WUO 'federations'. Part fifteen draws some preliminary conclusions about the legislation considered and presents recommendations for further study.

Finally, a note about citations and references. For the sake of simplicity, references to countries listed in Annex A are based on the WUO legislative profiles described above, except where reference is made to a specific article or section. Likewise, references to the legislation of the countries listed in Annex B refer to the specific legislative text listed in that annex, except again where a specific article or section is cited.


[1] This approach has also been followed in many of the former socialist states of Eastern Europe and Central Asia where, following the land reform process, WUOs have been established to take responsibility for irrigation and drainage systems previously operated by the now-dismantled collectivised farms.
[2] For example, the formal regulations for the operation and maintenance of the Benacher and Faitenar irrigation canals irrigators in Valencia, Spain were drawn up on 29 May 1435 (cited in Ostrom, E. Governing the Commons (1990)). These rules codified earlier customary rules that dated from many hundreds of years earlier. The statutory basis of the Dutch Waterschappe or 'Water Boards' dates back to the twelfth century.
[3] In Germany, for example, some WUOs are responsible for water management activities on only around 50 hectares of land, while others are responsible for up to 200,000 hectares of land.
[4] On closer examination, the term 'non-profit' is something of a misnomer. While the primary task of WUOs is to provide a service to their participants, as opposed to making (and distributing) a profit for investors or shareholders, they should never the less seek to make a 'profit', in the sense of a surplus of income over expenditure, as otherwise they will quickly become bankrupt. The key issue is that any surplus is retained within the organization.
[5] WUOs in Germany are regulated on the basis of a 1991 law that replaced legislation enacted in 1937 which, in turn, replaced legislation dating back to the nineteenth century, while in Spain WUOs are now regulated under the 2001 Water Law (Royal Legislative Decree No.1 of 2001, consolidating the amendments to the 1985 Water Act).
[6] Lindsay, J. Designing Legal Space For Community-Based Management, paper presented at an International Workshop On Community-Based Natural Resource Management, held at The World Bank Washington, D.C. May 10-14, 1998.
[7] Solanes, M. Irrigation Users' Organizations in the Legislation and Administration of Certain Latin American Countries (1983), Rome, FAO Legislative Study No. 24, FAO, Rome and Salman, S. The Legal Framework for Water Users' Associations - A Comparative Study (1997) The World Bank, Washington D.C. are notable exceptions.
[8] Legislative profiles were prepared by the FAO Development Law Service in respect of a number of countries for the FAO "International E-mail Conference on Irrigation Management Transfer" 3 September-29 October 2001. The countries in question are listed at Annex A. They are available at URL www.fao.org/landandwater/aglw/waterinstitutions/toconf.htm
[9] A list of primary legislative sources is contained at Annex B.
[10] Specifically Morocco, Tunisia, South Africa and Uganda.

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