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Trends And Developments In Water Resources Legislation Revisited

World Water Congress 2015 Edinburgh Scotland
15. Water law
Author(s): Stefano Burchi (Rome

Keyword(s): Sub-theme 15: Water law,


Introduction and method - Salient and emerging trends in water legislation are distilled from fresh comparative analysis of the contemporary water resources legislation of selected countries from different parts of the world, set against the backdrop of the latest stock-taking done for the XIV IWRA World Water Congress (2011).

Discussion - The salient trends of: (1) steadily attracting water resources -- in particular, groundwater - in the public domain of the state through a variety of legal constructs, and consequential attraction of such resources in the scope of governmental (or judicial) allocation/re-allocation authority; (2) qualifying the government authority to allocate and re-allocate water resources, and improving the quality of relevant decision-making, through Environmental Impact Assessment requirements, formal and informal water resources planning determinations, ecological flow requirements of rivers, and the "reserve" of stocks or flows of freshwater for the satisfaction of priority human needs and of the environment-support function and attendant requirements of freshwater bodies; (3) controlled trading primarily of water abstraction rights, but also of wastewater discharge rights; (4) the "greening" of water laws, evidenced by the high profile the environment has attained on the priority scale guiding the allocation, re-allocation and management of the resource; (5) charging for the use of water resources, and acknowledging the economic value of water through the "user pay" and the "polluter-pay" principles; and (6) the participation of water users in decision-making and management regarding, in particular, water sources under stress, and more generally through their representation in the internal structure of the government special-purpose river basin administration; are all supported and confirmed by the analysis of recent water resources legislation. Such analysis also discloses evidence of new attempts to capture in varying degrees the land-water connection in regard to the control of water pollution from "non-point" sources, to the protection of the natural recharge areas of aquifers, and to flood control; and to capture the interface between statutory and customary water rights and, in general, to acknowledge the existence of a "diffuse" water users' population on the ground, operating at the margin of the formal legal system of water allocation and for pollution control, and to grant them some legal standing before the formal legal system.

Conclusions - These trends -- some mature, others only discernible - point to a few key issues which will arguably inform the water law reform agenda in the coming years: (1) reconciling the security of water rights tenure sought by investors with risk and uncertainty of resource availability, particularly as a result of climate variability, and with the vagaries of shifting policies and shifting economic and social development priorities, with technological advances, and with changes in societal values and priorities; (2) pursuing opportunities for efficiency gains in resource allocation, notably through market mechanisms, without neglecting equity and environmental sustainability; (3) reconciling the growing demands of the environment with those of other users -- new and established - competing for the allocation and re-allocation of scarce water resources; and (4) empowering users to shoulder greater responsibilities, including via users-based forms of collaborative management. The more problematic issues of (5) re-kindling the connection between water resources, land uses, and -- with particular regard to groundwater -- all uses of the subsurface space, including the relevant administration; and (6) tackling the interface between customary and statutory water allocation systems, and, more in general, bringing the smaller to smallest-scale water users out in the field back on the radar screen of the formal legal system for water resources allocation and for pollution control; will also loom large on the water law reform agenda ahead. 1. Burchi, S., A comparative review of contemporary water resources legislation: trends, developments and an agenda for reform, 37 Water International 613-627 (2012)

2. Burchi, S., 2009-2011 Year-end-review of water resources legislation, 22 Journal of Water Law 248-265 (2011)

3. Burchi, S., 2012-2014 Year-end-review of water resources legislation (in preparation for the Journal of Water Law)

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