1 Based on a paper presented by the author at a Workshop on Irrigation Management (1976), in Canterbury, England.
2. Types of associations and their establishment
3. Legal character
4. Water use rights
5. Functional bodies
Associations of irrigation water users are among the oldest institutions established by man and still continue to be a useful means of developing and managing irrigation schemes. It is remarkable that some of the concepts developed by these ancient institutions remained in use for centuries and some of them are still valid.
Ruins throughout the world bear testimony to the efforts made by man to use water collectively. However, little written evidence has come down to us describing the organizational arrangements under which these works were constructed or used. The Hamnurabi Code (2300 BC) is one of the few documents from those early times that casts some light on the arrangements for the operation of the irrigation systems. Several texts describe the punishments applied to transgressors of the established rules governing the operation and maintenance of the irrigation canals. Thus, for example, article 55 states that "he who opens his canal to take water without care and damages his neighbour's field shall provide grain from his own harvest equal to his neighbour's loss" (Driver and Miles 1952). Other references from the same epoch can be found in the "Code of Manu" referring to the organizational structure which developed in the Indus Valley. Here also severe punishments were established to ensure proper utilization of water and its control was entrusted to a high official vested with full and undisputed powers.
Most of the ancient references indicate a strong water administration system, in which kings, emperors and pharaohs were the owners of the land and the irrigation facilities, and levied from the farmers at least partial repayment in produce from the cultivated lands. In these cases, one cannot speak of true associations of people undertaking an enterprise in common for their own benefit.
It is only in the 3rd century BC that documents refer to the existence of some kind of irrigation association in a context similar to that understood at present. Vishugupta Kantilya (300 BC) refers to the existence in India of privately and commonly owned reservoirs. But perhaps the most complete description of a water users association comes from an inscription found at Lamasba (near Batna, Algeria) from the time of Elgabalo (200 BC). It gives details about the distribution of water by rotation among 52 owners, and the most interesting aspect of it is that these rules were established by the users but they were formally ratified by the local senate (Click 1970).
In the 8th century AD, when the Arabs extended their empire throughout the Mediterranean lands, irrigation achieved its maximum political and social momentum. Though the Arabs may not have invented much about irrigation and its organization, they probably enhanced and promoted the practices and technologies inherited from their ancestors. Under their influence, the institutional structure for the administration of irrigation water attained an extraordinary complexity and refinement, constituting an integrated part of the administration of urban cities and conquered lands.
The statutes and by-laws of some of the irrigation associations existing in Spain, such as "Comunidad de Regantes de la Acequia Real del Jucar", contain rules originating in the time of the Arab domination that have been in use for more than 700 years.
There are considerable differences in the irrigation associations of the countries where they are institutionalized and even within a given country. Authors choose different criteria to group them, such as size of the membership, financial responsibilities and voluntary/compulsory formation. The criterion chosen in this text is the financial responsibility with regard to the repayment of the investments made in the irrigation infrastructure. Two main groups can be differentiated:
i. users associations bearing responsibility for repayment of the hydraulic works, their maintenance and the distribution of the water to the farmers. These groups are generic ally designated as "modern associations";
ii. users associations with their main responsibility being the distribution of water among the farmers. Eventually, the maintenance of canals within the boundaries of the area managed by the associations can also be their responsibility. These associations are generically designated as "traditional associations".
An association can be established voluntarily or compulsorily. A certain evolution of the voluntary to the compulsory system can be noted, as the need for greater administrative control of the water resources appears parallel to a higher demand.
i. Modern associations
Modern users associations have important financial responsibilities; they include, generally: repayment of the loan for the execution of the works, operation and maintenance costs, establishment of a reserve fund and administrative costs. These costs are normally recovered from the members of the association by way of taxes and/or fees imposed on the land and/or water.
Of special interest is the case of the irrigation districts in the USA. The majority of these, covering a large extent of land, issue shares or obligations to raise funds for the construction of the irrigation work. These shares contain a clause with the promise to pay a certain amount plus accrued interest at a given date. The interest does not usually exceed 6/7 percent per year and the mortgage period oscillates between 30 and 50 years. Nominal values are not less than US$ 100 or greater than US$ 1000. The obligations are backed by the district's capacity to exact levies from district members for the payment of interest and loaned amounts. Selling these obligations enables the districts to raise necessary funds for construction.
In general, the capital required for the hydraulic work is provided by the government through national or international banking institutions. When the government takes this initiative, it is unusual to claim from users the total payment of the amounts anticipated during the construction of the system (see Table 10, Chapter 8).
This type of association is generally voluntary, because the construction of the system stems from the desire of some interested individuals to obtain water for their properties. A distinction should be made between voluntary creation and the desire of a majority which is imposed on a minority. In the USA the establishment is voluntary, but when: (i) a majority of landowners whose lands constitute a major portion in value, or (ii) at least 500 electors, residents or proprietors owning as a minimum 20 percent of land value, have decided to establish a district, they can impose the formation of the district on the opposing minority. No member can leave the association once it is established without a previous and total renouncement of the utilization of water.
However, there are some countries where the establishment of an association is compulsory, as is the case in Spain and others where any irrigation system having more than 20 owners or more than 200 ha must form an association. In some other countries, compulsory associations coexist with the voluntary ones, as in Italy.
Coexistence of both systems tends to indicate that the associations were originally of a voluntary nature but the need to accelerate and increase farmers' participation in the development of irrigated agriculture later caused the establishment of the compulsory system.
ii. Traditional associations
Traditional users associations have much less financial responsibility because, one way or another, the irrigation work has been amortized in the past. Their responsibilities are generally limited to some maintenance work, which is often undertaken as communal work. In other cases, where operation and maintenance is undertaken by the board of directors, farmers are liable for the payment of the corresponding cost.
These associations are formed voluntarily. All farmers owning a plot of land at a certain distance from the water source undertake joint work to bring the water to their fields; by this mere fact they become members of the association.
Maintenance work is carried out in turns by groups of the community, or through some similar arrangement. Should a farmer be unable to render his share of the work, he is committed to equal its amount with agricultural products or cash.
These traditional associations usually have two types of members: active and inactive. The active members are by right, those who meet all the requirements as full members and their contribution to the association is generally provided through their personal work. Inactive members do riot meet the established requisites, for instance, they do not own their land but are tenant farmers, or their plots are too small, etc. Inactive members do not have a right to vote but pay a contribution to the association in kind or cash for the water received.
The nature of the functions of a users association implies the existence of a juridical character, independent from its members. This character is sometimes explicitly recognized by the law in the so-called modern associations but not in most of the traditional associations. The lack of recognition of this juridical nature is a major drawback to the associations when entering into any transaction: buying, selling contracting, administering, etc.
It should be noted that the nature of these associations is generally considered public, although it is difficult to ascertain the differences between public and private entities. By reason of their primary purpose - water distribution - which is basically public, and the fact that they are often endowed with administrative characteristics pertaining to the State, like regulations, managerial or legal powers, etc., the opinion is strengthened that they are public entities.
Though there are some similarities between the water rights of the association and that of the individual members, it is advisable to treat them separately.
i. Water use rights of the association
The appropriation of water by the association takes place under one of three systems: riparian, prior association or administrative permit. Generally, every country uses one of these three systems, but in a few, like the USA two of these systems - riparian and prior appropriation, coexist.
When the association is legally recognized, the statutes generally specify maximum quantity of water allowed, detailing the characteristics of intake, or intakes, and the river or natural source of supply. When the association takes the water from a canal, the total capacity of the canal limits the amount that the association may utilize but, even in such cases, the quantity the association is authorized to utilize is stipulated.
When governments exercise administrative control of the water use, the administrative bodies take special care that the requests for water within a given watershed do not exceed the minimum flow in a recurrent period, to avoid possible disputes among the different associations and private users.
This problem is even more relevant in countries where riparian rights are customary and where recognized right of use - by practice or by law - is higher, at least in dry years, than available water. The solutions adopted to solve this problem have a common denominator: the different groups of users - agricultural or others - have to decide jointly how to divide the existing resources. In Chile, for instance, the presidents of the associations of users and private individuals utilizing the water resources in the same basin hold meetings to decide the best distribution of the available water. These meetings are called Juntas de Vigilancia.
ii. Water rights of the members
The right of each associate to the water follows different patterns. The majority of the associations recognize the right of their members to use the water but the quantities allowed are rarely mentioned; there is a certain flexibility in this respect, except in cases where water is scarce. The following are the most common modes:
a. Water can be used without any limitation. This is done "on demand" in irrigation systems where the user has available as much water as needed but has to pay for every unit. The only limitation derives from the maximum capacity of the canals or pipes transporting the water. Naturally, when the farmer pays for water units waste is prevented and the demand will be proportionate to his needs. A variation of this modality is found in irrigation systems where the irrigation works have been repaid; in this case, a certain amount of water - 3 acre feet in USA - is granted to the farmer almost free, and for quantities used beyond this amount he has to pay the established fee.
b. Every member has a right to a fixed amount of water. This implies that the right to use water is not linked to the land but to the landowner who previously invested in the works. Generally, these amounts are proportionate to the contributions made to finance the works, in which case the beneficiary has a right to use an amount of water, equivalent to a number of shares that he can exchange or sell totally or partially to others.
Theoretically, this system cannot be followed in countries where the water is a public resource, as the right to water of a legal group or private person is not transferable; in practice, it is utilized even in these countries, especially when a group of farmers associate to finance the construction of a well for the exploitation of groundwater. They are co-proprietors and have a right to the number of "water shares" commensurate with their contribution. This applies to Spain and Chile.
c. Each plot of land has a right to a fixed amount of water. Contrary to the above, this method implies that the quantity of water is tied to the area of land to be irrigated. As in the case mentioned above, the water volume for the association is divided into equal parts and each plot receives a number of shares proportionate to its surface. Spain and Chile use this method in addition to the former one.
d. The member has the right to use water. The characteristic of this method is the concession of the right to use the water, without any specification as to the quantity. This method is used frequently by the traditional associations mostly in the Asian region. Thus for example, in the Subak system in Indonesia, the quantity or the time are not defined when the right to use water is granted. The quantities to be distributed are allocated during periodic meetings - every one or two months - by the members of the association and distribution is according to the individual needs. Thus, the quantities of water are proportionate to the amount of rice (paddy) cultivated. These systems admit certain priorities commonly accepted by the users: crops planted in November-December have irrigation priority over January/February crops, and these over crops planted in March/April. The plots closer to the water intake also have a higher priority than those situated further away.
In all traditional associations the water master has great influence over the farmers and his decisions regarding water allocation are usually considered unappealable.
It should be pointed out that the above methods appear more rigid than they are in reality. Except in cases where scarcity of water imposes a very strict rotation and distribution, there is generally great flexibility in the latter. Furthermore, many irrigation systems lack adequate hydraulic structures for exact measurement and distribution of water.
The main functional bodies of an irrigation association are: the General Assembly, the Board of Directors, the manager's office, the Executive Units and the Irrigation Juries, as described in the text. Their main characteristics are given below:
i. The General Assembly
The General Assembly is the highest authority in a water users' association; it is composed of all the members and its nature is mainly ordinative.
The tasks of the General Assembly are traditionally to: (i) elect the board of directors, (ii) decide on proposals presented by the board of directors, (iii) approve the statutes of the association, and (iv) approve the annual budget.
a. The right to speak and vote:
The right to Speak and vote varies in general assemblies depending on the type of association.
The "Communidades de Regantes" in Spain grant the right to speak to any member of the community, whilst the right to vote is conditioned by the surface of land owned. The Water Law prescribes that "...each community shall establish a way to compute the votes in accordance with the properties represented by the interested individuals...". This is similar to certain dispositions followed in the Subak associations of Indonesia.
In the USA the right to vote is one of the factors that differentiates the diverse types of "districts". Thus, in 'irrigation districts' the vote is limited to registered members of the district on the basis: one vote, one landowner. In 'water districts' the owners have the right to vote for each dollar's worth of land benefitting from the district's water. Finally, in 'county water districts' all immovable properties, in addition to land, of the prospective members may be included in the overall evaluation to apportion the votes.
Normally, the number of votes is proportional to the land or other properties of individual members within the confines of the association. However, in some cases restrictions are imposed on the owners of large areas in order to avoid a few individuals controlling the association. This happens in Mendoza, Argentina, where canal inspectors are elected according to a scale of votes inversely proportional to the land owned.
b. The right of association:
The right of association is usually restricted to the owners of the land, the reason being that tenants are rarely interested in any permanent improvements to the system. However, there are countries where tenants are granted the right to vote on a temporary or permanent basis.
c. Operation of the Assembly:
The general assembly meets once or twice a year, but in cases of emergency the board of directors may convene an extraordinary meeting. In the Subak system meetings are held once a month but it should not be forgotten that the purpose of these meetings is to assign the water to the users, consequently they should be frequent
In irrigation systems where the number of owners with voting rights is very high, it is occasionally difficult to conduct the general assembly in an orderly and effective way. To solve this problem, sometimes each group of 20 or 30 owners nominates a representative to attend the assembly.
ii. The Board of Directors
This is the executive body of the association, that is, it carries out the tasks recommended and approved by the general assembly. In the "Comunidades de Regantes" in Spain this body is called the "Sindicato de Riegos".
The functions and responsibilities of the board of directors differ considerably according to the type-of association. In the USA the board of directors is a body which controls the administration and operation of the system although it actually does not do this itself. A project manager is appointed for this purpose and he is in charge of the implementation of the decisions taken by the Board · (Figure 14).
Whether the board executes tasks itself or delegates to other people, it generally undertakes the following functions: operates the irrigation network, contracts personnel to execute the work, exacts payment of water fees, negotiates credits for the execution of work, issues shares (USA) to raise capital, convenes the general assembly and all other functions inherent in the adequate administration of the system. These attributes are generally described in detail in the statutes of the association.
The board consists of a chairman elected from the directors, and a number of directors; these vary from three to ten. There are also cases, like the Subak system, where only one director or water master is elected. It is desirable that the directors represent the different interests existing within the association. For instance, when there are severe drainage problems in an area the statutes may prescribe that one of the members of the board be from the owners affected by that situation. The norm exists in the Spanish "Comunidades de Regantes" that at least one of the members of the board shall be from the area most distant from the main intake and which obviously receives less water than those located at the head.
It should be noted that some associations have a president of the community and a chairman of the board of directors. As both jobs imply similar functions, there is often friction between the people in these two posts, thus causing complications for the community. In general, the role of president does not seem necessary, as far as executive functions are concerned, because these can be carried out by the director of the board of administration.
iii. The Irrigation Juries
Two types are distinguishable within the water tribunals: those dealing with any kind of dispute originating on water matters, such as those existing in South Africa, Italy and some other countries, 'and those concerned with problems emerging from the irrigation systems. Of particular interest are the "Tribunal de las Aguas" in Valencia, and the "Jurados de Riego", also in Spain, briefly described below:
Fig. 14 Organigram of an Irrigation District in USA
a. The "Jurados de Riego" (Irrigation Jury)
This body consists of a chairman and a variable number of jury members. The election of the chairman depends on the "Sindicato de Riegos" (Board of Directors) and he must be a member of the board. The jurors are elected by the general assembly and, as in other jobs within the users associations, the term of office is limited. The number of jurors is generally 4-5 but in some irrigation systems it may be higher.
The functions of the jury are: (i) to be aware of the facts related to irrigation in any dispute between interested parties, and (ii) to impose sanctions on transgressors of the association's statutes. This executive power vested in the "Jurados de Riego" is recognized by the Law of 1966. The procedures of the "Jurados" are public and oral. Their verdicts are executive and enforced immediately. Appeals to higher authorities can be made, if desired.
b. The Water Tribunal of Valencia
This tribunal has been in operation uninterruptedly for over nine centuries and it served in fact as a model for the "Jurados de Riego" mentioned above. This tribunal is composed of a representative (síndico) from each of the eight associations of water users included in the old irrigation zone of Valencia. These representatives meet weekly in the Apostles' Gate of Valencia Cathedral.
Judgements are oral and public. The sentence, equally oral, is unappealable and immediately enforced. The costs of the tribunal are very low because the judges do not receive any remuneration for their services. The only charge is the cost of the juridical summons, which is barely US$ 2 per summons.
The formal jurisdiction of the tribunal covers all members of the eight associations represented by the tribunal but in practice it can take action against any person, individual or group, that has wrongly used community water. In reality, the tribunal has no jurisdiction over the non agricultural users but although up to now it has taken action against these, no record exists of counter claims.
The main advantage of this tribunal and that of the "Jurados de Riego" is the expediency of action and low costs. Expediency is a decisive element because decisions regarding irrigation matters cannot wait months or years as happens with other court processes; the immediate decisions are necessary to avoid damage caused becoming more serious as time goes on. This is the reason why the "Jurados de Riego" and water tribunals represent a valuable element in the smooth operation of an irrigation system.
A less effective alternative to these juries is the inclusion of a series of sanctions to penalize the most common infractions against the statutes of the association, the board of directors being empowered to enforce these sanctions.