Solutions created within the U.S. legal system often have little applicability around the world. However, while working on revisions to South African water law and drafting a groundwater law in Pakistan, I was struck by how similar the existing laws and issues were to those in California in the United States. In the years since then I have researched and published on the issue.
Based on my more than 25 years of water law practice I do believe that the aquifer governance institutions, "physical solutions," that have developed in California are well-suited to managing groundwater, transboundary rivers and aquifers around the world in a time of shifting hydrology due to climate change. I have worked extensively on legal issues in many watersheds and aquifers involving water rights allocation, the development of governance structures and the administration of watershed and aquifer management. Some of these watersheds and aquifers have involved tens of thousands of water users and allocating hundreds of thousands of acre feet of water. As a practitioner I can offer a practical perspective on what works, what does not work and why. For the reasons outlined below I believe this perspective would be valuable in the themes of the World Water Congress related to water law, transboundary rivers and basins, water governance and water allocations.
The stress on water resources throughout the world continues to increase. Population growth, the worldwide shift of people from rural areas to cities, the increasing number of people in the middle class in nations such as China, Brazil and India, and the recognition of the importance of allocating water for environmental needs, all place increasing demands on water resources and the institutions and laws that govern them. In addition to increased demands, climate change is impacting water availability.
Governance, both legally and institutionally, must adapt to meet these challenges. Instead of creating new legal regimes it is best to adapt current laws if possible. Adapting current laws is crucial because much of the world's water is already allocated and it will be futile and disruptive to attempt to overturn those legal regimes. Instead, existing law should be the starting point and the concepts of equity and reasonableness should be incorporated into it.
The importance of equity and reasonableness in international water law is evident from Article 5 of the Convention on the Law of Non-Navigational Uses of International Watercourses and Article 4 of the Draft Articles on the Law of Transboundary Aquifers which both provide for these concepts to be used in allocating water.
Like many legal regimes around the world, California groundwater aquifers have very limited statutory regulation. As Nobel Prize-winning economist Elinor Ostrom stated: "Over extraction has been the logical outcome of California's groundwater laws because it is an open access common pool resource without clear limits." Ostrom also noted that the "uncertainty of the competing water doctrines was compounded by the uncertainty shared by all water producers about the actual supply of water to a basin and the quantity of water withdrawn by all of the parties."
This situation, uncertainty of supply, water use and the law itself, is very similar to many other watercourses and basins throughout the world and makes the solutions used in California relevant to other countries.
Ostrom performed a comprehensive analysis of institutions from around the world that were successfully governing water and found certain key principles:
The institutions managing groundwater resources in California, which were included in Ostrom's study, contain these elements and have implemented them through what is called a "physical solution." A physical solution is sometimes called a "common sense" solution to water allocation disputes and allows parties to access the water they need by developing a legal and institutional structure to support existing and future uses.
The physical solutions I have worked with in California operate at three levels: political, legal and technical. They typically involve all stakeholders, provide for local governance, develop technical data, recognize subareas or subbasins of the watershed, monitor uses and set annual use amounts. The goal of a physical solution is to allow all reasonable and beneficial uses to continue, either through more efficient uses or by developing additional sources of water. A critical early step in the physical solution process is direct dialogue between all (or as many as will participate) of the technical representatives of stakeholders. This often leads to at least some areas of general hydrological agreement upon which lawyers and policymakers can structure sustainable legal and management institutions. What is notable about successful groundwater basin governance through physical solutions in California is that it has generally occurred without state or federal government participation. This is in part because a key element of a successful physical solution is that it serves the water basin users' needs and fits with the local conditions. This is much more likely to be accomplished if it is governed at the local level with oversight.
Adapting existing water laws is a great challenge with no single formula that will work for all aquifers or watercourses. The concepts of reasonableness and physical solution are not panaceas, but they provide the needed flexibility for institutions to adapt to conditions that may be unlike those ever seen before.