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VI. IDENTIFICATION OF WUO PARTICIPANTS


In order to be able to operate successfully each WUO needs to be able to clearly identify its beneficiaries or participants.[69] They, after all, will both pay for its activities and determine how those activities are undertaken. A number of questions arise. First of all, what is the precise nature of the legal relationship between a WUO and its participants? Second, how are the participants themselves identified? Third, is their participation compulsory or voluntary? The legislation answers these questions in a number of different ways.

(a) The relationship between WUOs and their participants

The legislation takes two main approaches regarding the relationship between WUOs and their participants. In many cases, the relationship is one of membership: the participants are members of the WUO. This approach is commonly found in Latin America, Asia and Western Europe and in the former socialist states of Eastern Europe and Central Asia. A variation on the membership approach is found in the American West in the case of Water or Ditch Companies where the participants are share or stock holders.[70]

In the second approach, the owners or users of land[71] within the operation area of the WUO are given legal rights to elect, and stand for election to, the WUO's management board.[72] Sometimes they are also given the right to approve the setting of tariffs. However, they are not formally 'members' of the WUO. This approach is found in the legislation of the United Sates, the Netherlands, and England and Wales.[73]

What are the legal and practical effects of the two different approaches? The non-membership model appears at first sight to give the participants less of say in how the WUO is run. In cases where participation in the WUO is through membership, meetings of the WUO's 'general assembly' give participants a chance to debate a much wider range of matters than tariff setting and electing the WUO management board. These might include approving the draft budget, approving changes to the WUO's governing document (see further below), approving a management or water distribution plan and taking decisions on the expulsion or sanctioning of WUO members.

Another apparent advantage of participation through membership is that it can confer a package of rights and duties on WUO members. Of course, the legislation (or governing document) could also confer rights and duties (including rights to a share of irrigation water, to participate in elections, and so forth) on the participants in a non-member organization. But an advantage of the membership approach is that the package of rights can potentially be removed by way of sanction. As will be seen below, every WUO needs to be able to make internal rules that apply to its participants and to punish breaches of those rules. As such, in cases where WUO participation is not compulsory, expulsion - which is commonly provided for in legislation - is the ultimate internal sanction. At a stroke, the wrongdoer is deprived of the whole package of rights, including the right to services provided by the WUO at the preferential rates available only to members.

Furthermore, from a psychological perspective, it might be argued that the membership approach supports the process of institution building, in that membership might confer a greater sense of 'ownership' on participants. On the other hand, if participation is to be compulsory, a matter considered below, WUO membership may be less constitutionally acceptable in some legal systems than conferring fee-raising and rule-making powers on a local self-managed body.

In broad terms, under either approach the WUO is ultimately controlled by its participants, whether or not they are actually members.

(b) The identification of participants

Irrespective of the form of participation, the next question is how the WUO participants are to be identified. Several approaches are taken in the legislation.

Sometimes participants are identified by reference to their use of water. A good example is Spain, where the law states that:

Those water users that benefit from one water intake or water concession must create a water users community.[74]

The Indonesian legislation takes a similar approach except that it refers to the users of a tertiary irrigation system[75] rather than a water source. It states that WUO members may include rice (paddy) field owners, agricultural workers, fish-pond owners who obtain water from irrigation systems, Village Administration members who possess land, associations that cultivate rice (paddy) fields or operate fishponds and all other irrigation water users in the area under the WUO's jurisdiction. Sometimes, as in El Salvador, participation is restricted to water users served by a particular water source who also hold a water right.[76]

Another approach is to define the participants by reference to their relationship with land which can potentially receive services from the WUO. Thus the Albanian legislation confers legal rights to participate in a WUO on those who own or use land within that WUO's 'irrigation service area'. This is 'a defined geographical area in which irrigation water can be provided by an Association to an irrigation system'.[77] Similarly in Colombia, WUO membership relates to the ownership or use of land within Land Development Districts (Distritos de adecuación de tierras) save that all landowners, tenants and holders of any entitlement to the use of land within such a district automatically become members of the relevant WUO.

Regarding WUOs which undertake irrigation and drainage, it is important in the case of leased land to determine whether the WUO participant is to be the land owner or the land user. This can actually be quite a difficult policy issue. On one hand, a tenant who is farming - and thus irrigating or draining the land - will most directly and immediately benefit from the WUO's activities and should arguably have the legal right to participate in the WUO. On the other hand, such a tenant may have no more than a short-term interest in the land and thus the WUO. For such a participant a decision to defer necessary maintenance work may make perfect economic sense. In contrast, the successful operation of the WUO will tend to increase the value of the owner's land and thus it can be argued that the owner, rather than the tenant, has a greater interest in ensuring the successful performance of the WUO.

Whatever their respective merits, both approaches can be found in the legislation. In the Philippines the right to participate is confined to land users.[78] In Andhra Pradesh State, in India, while the law states that all 'landholders' (whether owners or tenants) in the designated WUO 'command area' may be participants in a WUO, where the tenant is the land user then she/he alone is eligible for membership. On the other hand in Bulgaria tenants only have a legal right to WUO membership if they hold a lease of more than three years. Otherwise they may only acquire membership on the approval of the landowner.

In California the legal form of a WUO determines its participants. Thus 'registered voters', in other words residents, are entitled to participate in an Irrigation District, while participation in a California Water District is restricted to the owners of land within that district.[79]

In England, participation in a WUO depends on land classification. Every 'occupier' of land classified as 'agricultural land' within a 'Drainage District', is a WUO participant. As such they must pay drainage fees but they may also stand for office and vote in elections to the WUO's management board.[80] An occupier may be the owner, a tenant or some other user.[81] On the other hand, the occupiers of non-agricultural land within a Drainage District have no direct legal rights to participate in the functioning of the WUO, but nor do they pay drainage fees directly either. This is because every occupier of non-agricultural land must pay a local tax, called the 'community charge', to their local authority (municipality). Agricultural land, however, is not subject to the community charge. As regards non-agricultural land within a Drainage District the community charge includes an element to cover the drainage costs of the relevant WUO which are passed on to it by the local authority. Each local authority is in turn entitled to be represented on the WUO's management board, thereby maintaining, albeit somewhat indirectly, the principle of beneficiary representation.

The provisions of the German law are also broad enough to include towns and cities. The Federal Association Law recognises five kinds of WUO participant. These are:

It is important to note that participation in a WUO is defined primarily through ownership of a plot of land or an 'installation'. It is only in exceptional cases that German WUOs are entitled to accept non land-owning private persons as members. Examples include cases where WUOs are involved in the supply of water to towns and villages and the treatment and disposal of waste water.[83]

The French legislation expressly provides for WUO membership by state actors. Thus in respect of the land assets of a département, the prefect can become a WUO member; in the case of the land assets of a commune or public establishments, the mayor or establishment administrator may do so; and the Minister of Finance can become a WUO member in respect of state assets.

One aspect of membership is the question of succession. This can be an important issue. After all, if land ownership confers the right to WUO membership, a member with outstanding liabilities could purport to sell his/her land to a close relative who could claim membership of the WUO but, all else being equal, could refuse to pay the liabilities of the previous owner. This would mean that the WUO would have to continue to provide services the 'new' member. The legislation of a number of countries addresses this issue. For example, the Moroccan legislation provides that a purchaser of land is by law automatically a member of the WUO, and responsible to discharge the liabilities of the previous owner, as is the successor on the death of a member.

This kind of provision, whereby a new land owner can only participate in a WUO once the previous owner's debts have been discharged, is likely to be less effective in cases where membership is either not compulsory or simply not really necessary (for example in cases where irrigation is supplementary). And if membership is not compulsory, an issue considered in the next section then what restrictions, if any, are there on leaving the WUO? The Armenian legislation provides that a WUO's governing document can prevent a member from leaving the WUO until the end of the irrigation season so, at the very least, not to disturb the WUO's budgetary projections and planning for that year.

(c) Compulsory or voluntary participation

In the case of non-membership forms of WUO, participation by beneficiaries is normally compulsory, to the extent that the law specifies their rights to participate in elections, as well as their obligation to pay fees and charges for services provided by the WUO. As regards membership form-WUOs, both compulsory and voluntary approaches to participation can be found in the legislation. Examples of jurisdictions where the legislation provides for compulsory WUO membership include Andhra Pradesh, in India, and Nepal. In Mendoza Province in Argentina all holders of rights to the use of public water delivered by the same distribution system must become members of the WUO. This is similar to the approach in Spain. Membership is automatic in Bolivia for all users of the same irrigation system while the provisions in the Colombian legislation on compulsory membership have already been mentioned.

The French legislation provides for two categories of WUO, those which are 'free' and those which are 'authorised'. Free WUOs are established on an entirely voluntary basis without the participation of the state, while authorised WUOs are established on the basis of a decision of the prefect, on the initiative of the interested land owners or a mayor, the prefect or a sub-prefect. Authorised WUOs have a number of benefits including the right to require compulsory membership[84] and to recover taxes and membership fees through execution by the prefect.

In Germany, membership of a WUO is compulsory only if its tasks are undertaken in the 'public interest' - otherwise it is voluntary. The fact that membership of a WUO is defined primarily through land-ownership has been the key point in resolving the potential constitutional conflict that would otherwise have arisen from compulsory WUO membership.[85]

Although the German legislation has been quite an influential model for the development of WUO legislation in the former socialist countries of Eastern Europe and Central Asia, the legislation in none of these countries provides for compulsory membership. This is largely because memories of forced collectivisation under socialism are still fresh, and it has generally been considered that the element of coercion implicit in a compulsory approach to membership would impede the introduction of the WUO concept as it would actually discourage participation.[86] The voluntary approach is also found in other countries where WUO legislation has recently been introduced including South Africa, Pakistan (Punjab Province) and Costa Rica.

As alluded to in the previous section, the voluntary approach to membership is not, however, without problems. First of all, a WUO may not be viable without a minimum level of participation. But even if this threshold can be reached, there remains the question of 'free-riders': non members who directly or indirectly benefit from a WUO's activity. This is particularly true where land drainage is concerned: if the water table is lowered by the WUO, the land of neighbouring members and non-members will benefit equally.[87] Similarly in the case of an irrigation WUO, non-members may directly benefit from irrigation activities on land plots adjacent to their own, even if they do not choose to irrigate themselves. In any event the existence of a functioning WUO may actually increase the value of their land.[88] Another potential problem is that non-members may refuse to allow water to flow through canals that cross their land, or to give access to their land for the purpose of cleaning and maintaining adjacent canals. As described in Part 12 below, a common legislative response in this kind of situation is to permit WUOs to charge non-members at a higher rate in respect of the services that they provide. This may have the effect of encouraging membership in cases where the WUO provides an essential service. However, it cannot guarantee high levels of participation, even in places where the services provided by the WUO are essential.

Can any conclusions be drawn about the different approaches? It seems that national custom and experience may play as important a role in providing answers to this question as purely legal considerations. For example, although the Mexican legislation provides that WUO membership is voluntary, in practice membership levels are extremely high. Certainly, it would appear that compulsory membership is more accepted in those countries which have a longer WUO tradition. On the other hand, given that successful WUOs function on the basis of the support of their members, trying to use the law to force people to join WUOs would probably be counter-productive in the short term.


[69] Indeed this is a key requirement for any community based collective property management institution. See Ostrom op cit.
[70] Shareholders are often considered by legislation to be the 'members' of a company. This approach does not appear to have been successfully replicated in any other country. Attempts to set up WUOs as companies in Bulgaria failed: rich farmers took over the irrigation companies leading to riots and civil unrest in some regions.
[71] And as will be seen not all land owners/users may be so eligible.
[72] The internal institutional organization of WUOs is considered in Part Eight below.
[73] This approach is also used in respect of the Drainage Boards created in the Albanian Irrigation and Drainage Law. The beneficiaries of the Board's flood defence and land drainage activities will have the right to elect representatives to the boards.
[74] Article 73 of the Water Law.
[75] While practice can vary regarding this nomenclature, a primary canal generally conveys water from a natural source such as a river to feed a number of secondary canals. These in turn feed tertiary canals or systems of canals from which water is conveyed to the fields, sometimes by a series of earthen field canals. 'Tertiary' canals and systems are often those that are transferred to WUOs under IMT. But there can be cases where WUOs operate small primary canals and on particularly complex schemes, fourth and fifth level canals may exist.
[76] A further qualification is that the land of such persons must not be inside an Irrigation and Drainage District (Distrito de Riego y Avenamiento).
[77] Article 2, Law on Irrigation and Drainage, 1999.
[78] Those who till the soil.
[79] This rule is specifically dis-applied to some irrigation districts though. In the sense used here, the term participate includes participation in the establishment as well as the operation of a WUO.
[80] Sometimes, such as the case of the Middle Level Commission which was established on the basis of specific legislation, only large land owners, those owning more than 500 hectares, are entitled to vote.
[81] If the land is un-used then the owner is deemed to be the 'occupier'.
[82] Article 4, German Federal Law on Water and Soil Associations, 1991.
[83] The Braunschweig Water and Land Association provides an interesting case. The members of the association are the City of Braunschweig and a number of nearby farmers. The Association treats the city's wastewater which is then used to irrigate the farmers' land.
[84] A person may only contest his/her membership or the proper establishment of the WUO within a period of one month from the date of the relevant decision.
[85] In the past, a number of private individuals contested compulsory membership in public corporations as being unconstitutional on the grounds that article 2, paragraph 1 of the German Constitution guarantees its citizens the right to personal freedom and liberty and to their own private sphere that is free of interference by the State. One implication of this constitutional guarantee is that the German State cannot force its citizens to join associations of any kind, be it political parties, religious affiliations or other societies. The Constitutional Court resolved this conflict by deciding that, contrary to the cases of membership of political parties or religious affiliations, the determining factor for membership of Water and Land Associations is the ownership status of the land, and not the personal status of any private individual. It is consequently not the person but the land that is a member of each association. Furthermore, the Constitutional Court ruled that compulsory membership is only allowed in very restricted cases, namely when a public corporation is carrying out tasks in the public interest. Maurer, H op cit. (Translation: Petra Siegers) Interestingly, irrigation is no longer seen to be a public interest activity as a result of the agricultural surpluses within the European Union. Examples of public interest Water and Land Associations include those involved in dyke management and flood defence.
[86] Thus the voluntary approach is found in the WUO legislation of Albania, Bulgaria, Romania, Estonia, Armenia, Georgia and the Kyrgyz Republic.
[87] This has been a particular problem for the Land and Water Associations in Estonia.
[88] Just as the value of a house on a surfaced or made-up road with nearby water, sewerage, electricity and telephone connections will be higher than one that does not have such access to facilities, irrespective of whether the current owner drives a car or uses those facilities.

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