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III. THE PERMITTED TASKS OF WUOs


WUO legislation invariably sets out the purposes for which a WUO may be established and describes the range of tasks that it may lawfully undertake. Most of the WUO legislation reviewed in the preparation of this study conceives of WUOs that have irrigation activities as their primary task. For example, in Mexico the Water Law indicates that the functions of a WUO are to deliver irrigation water and to operate and maintain such irrigation canals as have been transferred to it.[22]

A similar approach is taken in the legislation of Punjab Province in Pakistan. The tasks of WUOs are to manage water distribution systems, to deliver irrigation water and to operate and maintain canals and infrastructure. In typical common law style, the law contains a 'mopping up' clause that indicates that WUOs may also perform any duty, function or responsibility which is incidental or implied in their main duties, functions and responsibilities.

In the Peruvian legislation the tasks of WUOs are stated to be irrigation, drainage and other agricultural purposes, while in Romania, where WUOs generally operate pressurized pump irrigation systems, the law describes their task as being to manage irrigation within 'hydraulic units' which are defined as the 'area of land capable of receiving water for irrigation from one water delivery source'.[23]

The Albanian legislation describes the task of WUOs as being to 'undertake the operation and maintenance of irrigation systems that have been transferred to them'. However, the definition of 'irrigation systems' also includes field drainage systems. Similarly in El Salvador the purpose of WUOs are irrigation and drainage, while in Mendoza Province, Argentina, the tasks are irrigation, drainage and groundwater use.

In Andhra Pradesh, the law spells out the objectives of WUOs, as well as those of farmers' organizations in general. These are to promote and secure distribution of water among users, to provide adequate maintenance of the irrigation system, to ensure efficient and economical utilisation of water to optimise agricultural production, to protect the environment and to ensure an 'ecological balance'.

In South Africa, irrigation, drainage, subterranean water use are listed in the Water Act as the main activities of WUOs, but alone among the legislation considered, the act also goes to include specific reference to livestock watering. While the precise tasks are to be specified in governing document of each WUO, the model governing document annexed to the Act lists a number of ancillary tasks. These include the regulation of the flow of any watercourse, the construction, purchase, operation and maintenance of water- works necessary for drainage and irrigation and the supervision and regulation of the distribution of water resources according to the relevant water use.

In Turkey, the draft law currently under preparation focuses on the use of water, but distinguishes between two types of use, namely use for irrigation in agricultural areas and use for domestic water supply in 'tourist areas'. This is similar to the approach taken by the Tunisian legislation which provides that 'Public Interest Associations' (Associations d'intérêt collectif) may undertake irrigation, drainage, potable water supply and sanitation activities.

On the other hand, Uganda's Water Statute foresees the establishment of WUOs that have drinking water supply as their principal - or only - task. The law provides that a 'set of individuals or households' may jointly establish a 'Water User Group' to collectively plan and manage a 'point source water supply' in their local area and to collect revenue to cover the costs of this. Each Water User Group is controlled by a 'Water and Sanitation Committee' that is also responsible for sanitation and hygiene in the area. In cases where a single water supply system is established by and serves more than one Water User Group, the relevant Water and Sanitation Committees are required to establish a 'Water User Association' that is made up of an agreed number of representatives from each committee and which is tasked with the management of the system. However, the legislation goes on to provide that local authorities may organise the formation of Water User Groups and Associations within their jurisdiction.

In Spain the specific tasks of WUOs are not specified as such in the Water Law, although certain tasks are envisaged. The key issue is that 'User Communities' must be established in certain circumstances (which are considered in more detail below). Usually this is for the extraction and use of water, but article 82 (2) of the Water Law provides that public institutions, corporations and individuals that need to discharge waste water may create a User Community in order to 'carry out studies on sewerage system, sewerage works, water treatment and other common elements that allow discharging of effluents in the most appropriate place, and in the best technical and economic conditions, taking into account environmental protection.' Indeed the state river basin administration may impose the establishment of this type of community if it is necessary.

Box B - The permitted activities of German Water and Land Associations

Article 2 of the Federal Water and Land Association Law of 1991 lists the types of tasks that can be carried out by associations. These tasks include:

a) the expansion of watercourses, including restoration and maintenance which respects the natural environment;

b) the construction and maintenance of facilities in and along watercourses;

c) the construction and maintenance of rural roads and streets;

d) the construction, acquisition, operation and maintenance as well as the removal of communal facilities used for agricultural purposes;

e) sea defence and flood protection, including necessary measures on the land near dykes;

f) the amelioration of agricultural and other land, including the management of the soil water and soil air table;

g) the construction, procurement, operation, maintenance and disposal of irrigation facilities as well as facilities for irrigation and drainage;

h) technical measures to manage groundwater and surface watercourses;

i) disposal of waste water;

j) disposal of waste arising in connection with tasks carried out by association;

k) procurement and provision of water;

l) establishment, maintenance and care of land, facilities and watercourses in order to conserve the balance of nature and the soil and in order to cultivate the landscape;

m) promotion of co-operation between agriculture and water management and further development of water, soil and nature conservation; and

n) the promotion and supervision of any one of the aforementioned activities.

The German legislation permits WUOs to undertake a broad range of tasks relating to the use and management of water.[24] These are listed in Box B.[25] With the exception of those that are compulsorily established, each WUO is free to decide which of these tasks it will carry out. The decision whether or not to carry out a particular activity will depend largely on the willingness of the organization's participants to finance it.

The French legislation also enables WUOs to undertake a wide range of tasks, some fifteen in all, relating to the construction and operation of works, including works relating to irrigation and drainage. Many of these tasks have been added by amendment since the law was originally enacted in 1865. These include the construction and maintenance of works[26]: to prevent water pollution (added in 1959); to recharge aquifers (added in 1964); and to protect land against the sea, rivers, torrents, navigable and non-navigable rivers as well as forest fires, erosion, avalanches, rock and boulder falls, land slides and volcanic eruptions (added in 1985).

Of all the WUOs considered in this paper, the Dutch organizations have probably the longest continuous history. While their focus is very much on water management, their role too has also developed to encompass a wide range of other activities. According to the current legislation they have three main responsibilities:

In addition, the legislation also permits them to take responsibility for the maintenance of rural roads and inland waterways.

The legislation reviewed so far in this section conceives of a single legal form of WUO that may undertake a wide range of tasks. By contrast, in Italy the law provides for the establishment of different types of WUO, depending on the tasks to be performed. The first type, 'Land Reclamation Consortia' (Consorzi di bonifica), undertake major irrigation and drainage activities. The second, 'Land Improvement Consortia' (Consorzi di miglioramento fondiario) undertake land improvement tasks while the third type 'Voluntary Irrigation Consortia' (Consorzi volontari di irrigazione) undertake irrigation tasks.[27]

It is the California legislation, however, that provides for the greatest variety of forms of WUO, as demonstrated in Box A. The permitted tasks of these WUOs include irrigation water supply, drinking water supply, waste water removal and treatment, flood defence/levee maintenance, land reclamation and water conservation. Indeed, there is a degree of overlap between the tasks that different types of WUO may undertake. The reason why one particular form of WUO is chosen over another can relate to the different rules regulating the internal functioning of the different WUO forms as well as the scope of their permitted activities.[28]

Why so many different forms of WUO? Ostrom explains that the home-rule tradition and the particular legislative practices of the State of California help to reduce the costs of transforming existing rule systems. Thus it is relatively easy for a group of individuals to introduce new organic legislation authorizing a new type of special district.[29]

Whether through amendments to existing forms of WUO (as in France and Germany,) or through the creation of new forms of WUO, (as in California,) the WUO legislation reviewed is changing to reflect new and expanded roles regarding land and water management. A recent study noted that there is a general trend for American WUOs to play an increased role in water resource management and conservation[30] while the references to conservation in the recently enacted German legislation were a distinct development from the previous law.

One question that frequently arises during the elaboration and development of policy and legislation relating to agriculture-sector WUOs is whether their tasks should be limited to aspects of land and water management or expanded to include other agriculture sector support activities, for example the supply of seeds and other inputs, marketing, wholesaling and processing. In favour of an expanded role, it is argued that in the context of many WUOs, water is only one of various services or inputs that farmers need. Such additional activities may also provide additional sources of funding for WUOs and cross-subsidize their water management activities.

The answer to this particular policy question is probably that what is being proposed is no longer really a WUO but an agricultural cooperative. In fact, in the legislation reviewed in this paper, only the WUOs of Sri Lanka are legally permitted to undertake such commercial activities. Elsewhere, the core tasks of WUOs are limited to aspects of land and water management. Of course, different considerations may apply in each case, but there are several possible reasons for limiting the scope of WUO tasks in this way. First of all, other activities can usually be arranged on an individual basis by farmers and provided by the private sector. The very nature of land and water management tasks is such that a community-based approach is necessary. Secondly, whatever altruistic reasons lie behind them, the supply of inputs and agricultural marketing activities are essentially commercial activities. Apart from the fact that individual WUO members may wish to make their own private arrangements, such activities inherently involve a high degree of commercial risk. Given that the vast majority of new business ventures fail, and leaving aside the fact that WUOs operate on a non-profit basis, their very existence might be jeopardised as a result of unsuccessful commercial ventures. Furthermore, successfully operating a WUO is no small task. Adding of additional responsibilities will hardly facilitate effective WUO operation. Indeed, as WUOs generally operate with the absolute minimum number of employees, staff should not have the spare time to undertake new ventures. If additional staff are needed, this implies additional costs and it is difficult to see how profits from related activities could actually be made to cross-subsidize a WUO's core tasks. Finally, one reason for the success of WUOs is their single purpose nature. As a WUO generally has only one core task, for example the supply of drinking water, it is relatively easy to judge whether or not it is fulfilling that task effectively. Adding a range of other perhaps un-related tasks might make that assessment more difficult.

Having said that, examples do exist of legislation that permits WUOs to undertake secondary tasks in order to raise additional income. For example in California, Irrigation Districts[31] may, in accordance with the Water Code, raise money from electricity generation (sometimes they also generate electricity in one part of the scheme to power pumps elsewhere) as well as through leasing out land that they own.[32] However in both cases, the activities and the reasons why they can exploit such resources are closely tied to their primary water management tasks.[33]


[22] In addition the legislation provides that WUOs may construct their own infrastructure or participate in government-financed construction projects.
[23] Article 3(1) Government Emergency Ordinance No. 147 dated October 7th, 1999, concerning the Irrigation Water Users' Associations as approved by Law No. 573 dated 22 October for the approval of the Government Emergency Ordinance No. 147/1999 concerning the Water Users' Associations.
[24] Section 2 of the German Federal Law on Water and Soil Associations, 1991.
[25] However, this list is not exhaustive. As will be seen below, the law is a Federal Law and each state (Land) can, through its own laws, expand the list of tasks that can be carried out by WUOs within its jurisdiction.
[26] In the sense of both physical structures and activities.
[27] This type of WUO has now largely fallen from use.
[28] For example, both 'California Water Districts' and 'Irrigation Districts' commonly operate irrigation systems in order to provide water to agricultural land owners. However, as will be seen below, the legal rules relating to participation and financing are quite different.
[29] Ostrom, op cit at page 139.
[30] In the USA participatory water management bodies - districts and mutuals - have 'undertaken a more comprehensive water management role involving local initiatives in water conservation, water quality, environmental concerns involving water management, recreational uses, expansion of water service to new kinds of customers.' Irrigation Enterprise Management Practice Study US Bureau of Reclamation Project + E1.D4.4 20 December 1996
[31] But not California Water Districts.
[32] They are also entitled to construct, maintain and operate recreational facilities in connection with any dams, reservoirs or other works they own or control and to charge for the use of such facilities.
[33] For example, American WUOs only own land that is necessary for them to fulfil their primary tasks. They do not speculate in land acquisition. And Irrigation Districts that generate hydro-power electricity locate the generators on the canals that they operate.

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