FAO's legal advisory services relating to the development, use and protection of freshwater resources fall in two main categories: national water resources legislation and legal issues of international waters. Assistance also focuses on such issues as irrigation and drainage (Swaziland, Zambia) or water users' associations. Assistance may also be directed to the implementation of the legislation (Kyrghyzstan).
Legislative assistance in the freshwater domain is also provided in connection with the review of national water policies and with investment-oriented water-sector review exercises initiated by the World Bank (e.g., Pakistan).
FAO's legislative assistance tends to promote the integrated management of water resources and a balanced distribution of labour between the public and the private sectors. As a result, all water resources, whether surface or underground, are brought within the fold of one piece of legislation, and provision is made for planning, for orderly access to such resources by users in agriculture, industry, commerce, urban and rural households, and recreation and the environment; for the protection of water resources from depletion and from point- and non-point-source pollution; and for the institutional arrangements necessary for the administration of the legislation.
Issues of equity in access to water are addressed by affirming the role of the state and government as guardians and, if appropriate, owners of the country's waters, and dispensers of user rights to individuals. In response to mounting concerns with the efficiency of water allocation and use, legislative assistance may provide for trading of water user rights. This entails removing legal impediments, such as the attachment of water to the land where it occurs or flows; and ensuring the security and dependability of rights through the recording of relevant instruments and their enforceability as against other claimants. In the process, an appropriate balance is sought between the legal tradition of water as a public good and its new role as a tradable commodity.
The growing role of the private sector in the provision of water services relating, in particular, to irrigation is reflected in legislative assistance directed at enabling water users' groups to be formed with legal personality and with authority to levy and collect charges from their membership to cover the costs of operating and maintaining the irrigation infrastructure. Also, appropriate instruments must be in place to empower private-sector agents, including water users' groups, to take over from Government the responsibility for operating and maintaining Government-built and -operated irrigation schemes. Authority to charge for services rendered is critical in promoting private involvement in a sector which has traditionally been the province of the public sector.
Assistance in the implementation of water management legislation focuses on the design and operationalization of permit systems for the abstraction and use of water, and for the disposal of waste in it. The sustainability through time of a system's design is critical to the effectiveness of the assistance provided. This goal is pursued through upgrading the skills available locally and by pilot-testing systems in limited areas for a gradual application to the entire country.
Assistance provided in relation to rivers and lakes shared by two or more countries may centre on the identification and review of options for the legal configuration of permanent institutional arrangements for cooperation in managing the shared water resources (e.g. Lake Malawi/Nyasa, the North Western Sahara Aquifer System (better known as Système Aquifère du Sahara Septentrional - SASS). Assistance may include training in domestic and international legal aspects of managing a shared water resources, with a view to creating a multi-country pool of government officials prepared to deal with complex issues with a common understanding of the relevant legal ramifications and of approaches to unravelling them (e.g. the Nile basin).
Regular collaboration with the Water Resources, Development and Management Service of the Land and Water Development Division brings in an interdisciplinary dimension to the work of the Development Law Service.
The FAO Development Law Service and Land and Water Development Division have conducted a worldwide inventory on the legal and regulatory framework supporting Water Users Associations. Available country profiles can be downloaded from the IMT (Irrigation Management Transfer) website.