Modern water rights

Theory and practice

FAO Legislative Study 92

Throughout history the fugitive nature of water has posed conceptual and practical challenges to lawmakers. The vital importance of water to human activity is such that most societies and cultures have sought to establish legal rules over its use and allocation. But its fluidity and constant renewal as part of the hydrologic cycle has necessarily limited the appropriateness of traditional legal approaches to natural resources such as the concept of ownership.

Consequently in most jurisdictions legal rights to use water - water rights - have traditionally been linked to land tenure rights and in particular to land ownership rights. More specifically such rights have been conferred on the owners of land with direct physical access to a stream, river or other natural water source. Very often the only way to sell the right to use water was to sell the associated land right.

Driven mainly by increased pressure on water resources, but also by other factors that are discussed in this paper, a number of countries have recently undertaken substantive water law reforms. In some places such reforms are part of a process that began a hundred or more years ago. Elsewhere they represent a radical re-ordering of the status quo.

A key focus of such reforms has generally been the introduction of formal and explicit water rights that clearly specify the volume of water that is subject to each right (here after referred to as "modern water rights"), together with the associated institutional arrangements for their allocation, registration, monitoring and enforcement. Modern water rights are not intrinsically tied to specific land plots and in an increasing number of jurisdictions they are transferable and thus may be traded on a temporary or permanent basis. Long term, clearly defined and secure, they amount to a form of property right over the use of water.

From the perspective of society, modern water rights permit the orderly allocation and sustainable use of valuable water resources. From the perspective of the right holder they confer the necessary security to invest in activities entailing the use of water. More importantly they provide an effective mechanism for ensuring the proper management of water resources. As they are legally backed the state has an interest in ensuring that they are correctly implemented.

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