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Closely related to the question of compulsory membership is the question of compulsory establishment. Are WUOs established (1) on a voluntary basis by their participants, or (2) can they be established compulsorily by the state and, if so, (2a) is this at the state's discretion or (2b) automatically, under circumstances defined by the law? To address the last question first: as already mentioned, the Spanish Water Law requires the establishment of a WUO in any case where two or more water users take water from the same source. There is no discretion in the matter, either on the part of the water users themselves or the relevant basin administration.[89] In Nepal and Peru the establishment of WUOs is also mandatory in certain circumstances. In Nepal the beneficiaries of every irrigation project are required to establish a WUO. Similarly in Peru in each section or sub-section of an Irrigation District (Distrito de Riego) the water users are required to organize WUOs for that District.

In a number of countries a decision whether or not to establish a WUO is taken by the state. In Andra Pradesh State in India, such a decision is taken by the relevant Ministry which must first delineate part of the command area of an irrigation scheme to be a 'water users' service area'. Furthermore, the Ministry may form a new organization by separating part of the 'service area' from an existing organization.[90] Similarly, in Punjab Province in Pakistan the State Government is also given a broad discretion in the matter, and may establish WUOs and assign them functions as it deems fit.

Sometimes the legislation provides for WUOs to be established at the instigation of either a government body or future participants. For example, in South Africa the Ministry of Water Affairs and Forestry may establish a WUO on its own initiative or at the request of an 'interested person'. However, no indication is given in the Water Act as to the circumstances in which the Ministry should exercise its power to establish a compulsory WUO.[91] By contrast, the German legislation provides that WUOs can only be established on a compulsory basis where this is, in the opinion of the WUO regulator (the identity of which is discussed below), in the 'public interest'.[92] In all other cases, they are established in a voluntary manner by their future members.[93] And in Costa Rica WUO establishment is voluntary unless otherwise required by the Government in which case the conditions under which the Government may request the establishment of a WUO are indicated in the law.[94]

In cases where the decision to establish a WUO is taken on a voluntary basis by the future participants themselves, the procedure to be followed is usually described in the legislation.[95] Sometimes, as in the cases of Romania and California, this is done in primary legislation. Elsewhere, as in the cases of France and Albania, the establishment procedure is set out in secondary legislation: a decree in the case of France, and ministerial regulations in the case of Albania. In some examples such as Mexico, however, the WUO legislation is silent regarding the establishment procedure. This is because the actual legal basis for the acquisition by WUOs of legal personality - and thus the establishment procedure - is contained in other legislation.[96]

Where the establishment procedure is set out in WUO legislation, a four stage process is typically prescribed. In the first phase preparatory steps are taken, which may include the identification of potential participants as well as the area of operation of the WUO. For example, the Romanian legislation calls for the establishment of an 'initiation committee', composed of several potential members of the WUO. The committee must call a preliminary meeting to which all potential members are invited. At that meeting, decisions are taken on the proposed delimitation of the territory of the WUO, on the individuals to be responsible for drafting the WUO governing document and for taking the necessary steps for the establishment of the WUO. A similar procedure is foreseen by the Bulgarian legislation.

In California the process of establishing an Irrigation District is initiated by petition.[97] Such a petition must be supported by a majority of land owners or at least 500 land owners who hold title to not less than 20 percent of the value of the land to be included within the proposed district. The petition is presented to the 'Board of Supervisors' of the relevant county government, which determines whether or not to allow the process to go forward.

The next stage is to obtain technical approval for the establishment of the WUO from a state body, which is usually the WUO regulator discussed in Part 12 below. For example, to remain with California, a copy of the petition is also sent to the California Department of Water Resources which must report as soon as possible or at least within 90 days (unless an extension is formally requested) on the application. The Department of Water Resources may report that there is insufficient water or that the use of the water is not feasible for some other reason. Following such a report the county board of supervisors must dismiss the application unless three quarters of the land owners issue a new petition or the board of supervisors makes any amendments to the proposed district in accordance with the recommendations of the Department of Water Resources.

Another reason for requiring technical approval is that it is generally impractical for more than one WUO to be responsible for the operation and maintenance of a single item of infrastructure.[98] Alone among the legislation reviewed, the Georgian legislation makes this explicit by specifying that in the event that there is more than one application for a WUO on the same land area, the successful application will be that with a higher level of support.[99]

Once technical approval has been obtained, the next stage is for the potential participants to formally decide whether or not to establish the WUO. In Romania this is done by a 'foundation meeting' that is called by the initiation committee and to which all potential WUO members are invited. The draft governing document is considered, amended as necessary and approved following which the formal decision to establish the WUO is taken. Another task of the Foundation Meeting is to elect the members of the internal bodies of the WUO. This approach (whereby the decision whether or not to establish a WUO is determined by a 'Foundation Meeting,') is commonly found in the legislation on WUOs that operate on a membership basis.

In cases where the legislation does not provide for WUOs to have members, the decision whether or not to establish the WUO is typically taken on the basis of a local election. In California, once the petition to establish an Irrigation District has been approved by the county Board of Supervisors, the final decision on whether or not to establish an Irrigation District lies with the potential participants in accordance with an election on the proposition that is organised by the local 'Agency Formation Commission'. The legislation specifies the minimum contents of the ballot: an Irrigation District is created if a majority of the votes cast are 'Irrigation District - Yes.'

By way of contrast, in Romania a higher threshold of support must be achieved to establish a WUO. A decision to establish a Romanian WUO must be approved at a 'Foundation Meeting' by a simple majority vote of the potential WUO members, provided they own or use more than half of the land within the jurisdiction of the proposed WUO. A similar approach is taken in the Bulgarian legislation.[100]

The Moroccan WUO legislation requires the presence at the foundation meeting of at least two thirds of the participants of the proposed WUO.[101] If that level of participation cannot be reached, a second meeting is called. If the second meeting is also in-quorate a third meeting can be called which has authority to approve the establishment of the WUO provided this is approved by at least half of the potential participants who between them represent (in the sense of using or owning) at least half of the land area that will be served by the proposed WUO.

Various other permutations are to be found in the legislation regarding the level of support necessary to establish a WUO. In France the level of support necessary to establish an 'authorised' WUO[102] depends on the type of activities that it will undertake. For a WUO that will undertake activities relating to inter alia flood defence, the prevention of water pollution, the re-charge of aquifers, the cleaning, deepening and rehabilitation of canals and non-navigable water courses, including irrigation and drainage canals, the approval of the owners, users or persons responsible for either two thirds of the land area that will benefit from the proposed WUO's activity is needed, or of two thirds of the potential participants provided they own, use or are responsible for at least half of the relevant land area.[103]

For a WUO that will undertake activities relating to inter alia the treatment of water in towns, suburbs, districts, villages and hamlets and the maintenance of rights of way the approval of three quarters of the potential participants is needed providing they own, use or are responsible for at least two thirds of the land area that will benefit from the proposed WUO's activity. Alternatively the approval of two thirds potential participants will suffice providing they own, use or are responsible for three quarters of the relevant land area.

An even higher level of agreement is needed in Germany: in cases where WUOs do not undertake tasks that are in the public interest, unanimity is required.

Ensuring a high level of support for the establishment of a WUO will tend to increase its chances of success, especially when a voluntary approach is taken to membership. This situation was faced in the 1990s by the Estonian 'Land and Water Associations' which could be established by as few as five people to operate quite large land drainage schemes, but which had no powers to force compulsory membership. A weak agricultural sector combined with a high level of absentee landowners meant that it was often hard to attract a sufficiently large number of participants to give the organizations the necessary critical mass to operate effectively.

Finally, once a decision to establish a WUO has been made, the necessary procedural steps must be taken to confer legal personality on the WUO. In Romania the newly elected officials of the proposed WUO submit all relevant documentation to the WUO regulator and, upon its final approval, apply for registration in the Register of Associations at the local District Court. A very similar approach is taken in the Bulgarian law, save that as Bulgarian WUOs are established under public law the final step in the process is for the Government to approve the governing document thus conferring legal personality.

The process of establishing WUOs invariably entails certain costs, such as the costs of organising and holding meetings. Who should bear such costs? Sometimes the legislation makes provision for this. In South Africa, the Water Act states that the costs of the establishment procedure can be charged to the WUO, once it has been established, or to the person proposing its establishment. Similarly the Armenian WUO law provides that the members of the foundation committee can recover their reasonable costs from the newly established WUO.

What preliminary conclusions can be drawn about the establishment procedure for WUOs? Generally speaking, it appears that establishment by the state of compulsory WUOs is more prevalent in the countries with a longer WUO tradition, although much will depend on local customs and practices and the relationship between water users and the state. Given that the basic premise of the WUO concept is that WUOs operate on a participatory basis, it could be argued that compulsory or forced establishment violates that concept at the outset. Again, each case must be considered separately and in this regard compulsory establishment may be more suitable in cases where the immediate need for the organization is less ostensibly urgent. Farmers who witness their crops dying due to a lack of irrigation water may be more willing to participate in supporting the establishment of a WUO than those who know that the ground beneath their crops is water logged, or that there is a flood risk, but who can psychologically and practically delay taking action.

What is noteworthy is the level of detail commonly found in the legislation regarding the voluntary establishment of WUOs. This, it is suggested, has two main objectives: firstly to ensure that there is a genuine local support for the establishment of each WUO, and second, to ensure that the establishment procedure is sufficiently open and transparent to prevent the effective capture of the WUO for the benefit of individual participants.

[89] There is however a discretion in respect of the waste water communities. In accordance with article 80, the river basin administration may order the establishment of a water users community 'for the conjunctive usage of ground water and surface watercourses, when it is recommendable for the water management within an area'.
[90] The Ministry may also, at its discretion, increase, diminish or alter the boundaries of the area of operation of an organization. If any difficulty arises as to the constitution or reconstitution of any WUO (or other farmers' organizations), the Ministry is required to do anything necessary to remove the difficulty.
[91] In South Africa even in cases where the Ministry receives a proposal from an interested person to establish a WUO, the establishment process is tightly controlled by the Ministry, which establishes the WUO, gives it a name, determines its area of operation and approves its governing document. An 'interested person', presents a proposal to the Ministry containing information about the WUA to be established, including, among others, name, purpose, statute and list of members. The law provides that the Ministry may assist the 'interested person' in developing the proposal. Next, the Ministry publishes a notice in the Government's official Gazette regarding the proposed establishment of the WUA and calling for written comments. Finally, after having considered any comments received, the Ministry, by notice in the Gazette, establishes the WUO. While the Ministry is bound to take account of comments received on the proposal to establish the WUO, the final decision is taken by the Ministry.
[92] The three ways in which a WUO can be established are:
  • by means of a unanimous decision of the parties involved and the approval of the WUO regulator;
  • by means of a majority decision of the parties involved, the approval of the WUO regulator and an official decree by the WUO regulator issuing an order of compulsory membership upon the dissenting parties; or
  • by a state government (ex officio).

The power of a government to establish WUOs ex officio is very limited and can only be exercised where this is in the public interest. Examples of cases where the establishment of a WUO is considered to be in the public interest include those cases where its tasks are to:

- regulate aquatic discharges, to provide flood protection or to maintain non-navigable water-courses, so long as these measures can be performed by an association;

- remove drainage water, so long as the water constitutes a danger to the proper water management which cannot be managed expediently by other methods; and

- carry out operations necessary for the protection of the environment or nature or the cultivation of the natural landscape.

[93] Where WUOs are created either by majority decision or ex officio by the supervisory authority, it is necessary to ensure that persons who do not consent to becoming members of the association and yet who directly or indirectly benefit from the services of the association, pay for the services provided by the association. However, as already explained above, compulsory membership in WUOs is restricted to special cases, and is only permitted where the task carried out by the WUO constitutes a service in the public interest and at the same time benefits the individual being forced into membership. If the task does not constitute a service in the public interest but still benefits a non-consenting individual, it is not possible to force the individual to join the WUO. German law also contains no provisions for recovering the cost of providing a service to an individual if the person has explicitly refused the service.
[94] These relate to the number of users of the same water resource, to the size of the resource or to the particular circumstances of the case.
[95] Sometimes even voluntary establishment is less ‘voluntary’ than it first appears. For example, in the United States the Federal Bureau of Land Reclamation which is responsible for the operation of a number of major irrigation schemes simply may not, in accordance with Federal law, enter into contracts with individuals for the supply of irrigation water. Therefore if a group of farmers wish to obtain water from the Bureau they must first establish a WUO.
[96] Namely the Law on Civil Associations.
[97] The procedures for establishing other forms of California WUOs are similar.
[98] Other than in cases where a Federation of WUOs is established, as discussed in part twelve below.
[99] Specifically that application must have more than 51 percent the support of more than 51 percent of the land ‘possessors’.
[100] In the state of Arkansas the 1957 Regional Water Distribution Act has become the legislation of choice for the establishment of water districts to provide irrigation water in place of the Irrigation and Watershed Improvement District Act of 1949 which was originally enacted for that purpose. The reason is that the newer Act, which was originally designed for the establishment of water districts to supply water for drinking and industrial purposes, requires the support of only 100 landowners whereas the older legislation requires the support of a majority of land owners to establish that form of district. Looney, L.W. ‘Enhancing the role of Water Districts in Groundwater Management and Surface Water Utilization in Arkansas,’ (1995) 48 Arkansas Law Review, 643.
[101] This is the case where the initiative to establish the WUO comes from the state. Alternatively the establishment process can be started by the users (irrespective of whether or not they are also owners) of two thirds of the land area that will be served by the proposed WUO.
[102] As already mentioned, all of the potential participants must agree to participate in a voluntary WUO.
[103] Meaning the land area for which the WUO will have responsibilities.

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