12.

National Water Institutions:

allocation & integrated management
by Joyeeta Gupta, Frank Jaspers and Pieter van der Zaag

12.1

Introduction and Learning Objectives

In the previous unit the history of water law has been discussed. This Unit takes a more
forward-looking approach and discusses different possible allocation systems to achieve
equitable water distribution and ways to integrate water management. Besides theory, this
unit will give examples of water laws in other countries. After reading this Unit, you should
be able to:

12.2

Define and understand the general concepts with regard to the right to use water
( 12.2);

Articulate the relation between the priority of use system and the human right to
water ( 12.3);

Understand and analyze the different types of classification of water ( 12.4);

Analyze and form judgements on tradeable water rights ( 12.5);

Analyze the system of proportional water rights ( 12.6);

Understand, analyze and assess property rights to natural resources ( 12.7); and

Be able to integrate the different information learnt so far and critically assess the
concept of Integrated Water Resources Management ( 12.8); and the dilemmas and
contradictory principles in water allocation.

Introduction to the right to use water

The right to water is generally acquired through the effect of law, appropriation through prior
use or through administrative authorisation in terms of permits, licenses and concessions.
Permits may be issued for different water uses and nowadays there is also increasing
discussion of water trading. Key concepts here include:
Riparian use: ownership and use of water is related to ownership of land adjacent to water.
Absolute ownership, which allows riparians absolute rights on the water.
Correlative rights, which allows owners rights in relation to the rights of others.
Minimum flow, which limits the amount of water a riparian may extract to the minimum
flow level prescribed for a water body.

The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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Reasonable use, which limits the amount of water a riparian may use to that which may be
seen as reasonable. Criteria for reasonable use developed in the English and American
courts:

No riparian owner is allowed to use water to the detriment of other owners with
similar rights;

A reasonable share depends on its value to the user, the similar rights of lower
owners, the size and nature of the stream and the different uses to which the stream
could be appropriated;

Artificial use of water benefits the user rather than the fulfilling the vital requirements
of humans and animals. It would therefore be an unreasonable use if an owner uses
water for irrigation or for industry to the detriment of the domestic water
requirements of a neighbour;

A riparian owner has to allow water which is diverted but not used to flow back to the
channel from where it is diverted; and

Pollution is unreasonable and illegal.

Prior appropriation allows those who have been accessing water for some time, to gain
rights to continue acquiring that quantity of water in the future. The most important
features of prior appropriation are:

It gives an exclusive right to the first appropriator. In times of shortages, holders of a

senior right are permitted to take their entire right without regard to whether there is
any left for those holding junior rights;

It makes all rights conditional upon beneficial use; the right may be lost by non-use;

It permits water to be used on non-riparian lands as well as on riparian lands;

It permits diversion of water regardless of the diminution of the stream

Although the system of prior appropriation has generally been hailed as the most
advantageous, especially in environments where water is scarce, a growing body of
studies recognise its limitations. A number of authors concur that for dealing with
water shortage, the appropriation doctrine is inefficient (Howe et al. 1986: 442),
imposes greater risks (Rosegrant and Binswanger 1994: 1621) or is less flexible
(Ciriacy-Wantrup 1985). This is so because the most senior water right may not have
the best use of the water. A system based on senior claims may also deter
investment in water-saving technology because parties may risk forfeiting their claim
to water they are no longer using. States with systems based on seniority have seen an
increasing need to intervene and regulate access to water resources.

The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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Public trust is where a state holds a resource which is available for the free use of the
general public. A court will look with considerable scepticism on any government conduct
which is calculated either to reallocate that resource to more restricted uses, or to subject
public interest to the self interest of private parties. Here the government has a role in
ensuring that developmental projects are carried out only if they are consistent with the
environmental and ecological values attached to the water resource.

12.3

What are
examples of
priority
rankings?

Why is there a
need for a
positive right to
water?

Priority of use and the human right to water

Most institutions also include the concept of priority of use which calls for prioritising uses in
times of conflict. For example, in the former Soviet Union the water legislation empowered
local authorities to prohibit or limit the use of drinking water for industrial purposes in times
of scarcity in favour of drinking and domestic water needs. All water users are obliged to
utilise water rationally (Caponera 1992). In the U.S. state of Minnesota, the order of priorities
in times of drought are 1) domestic water supply, 2) consumptive uses of less that 10,000
gallons per day, 3) agricultural irrigation, then 4) power production and lastly, 5) other uses
(Goldfarb 1988: 28). In Taiwan, the Water Law was amended in 1983 and the priority of use
was as follows: 1) domestic and public water supply; 2) agricultural, 3) hydropower, 4)
industrial 5) navigation and 6) other uses. The use of water for drinking purposes is
prioritised when a human right to water is recognised. This is, alas, not often the case in the
developing countries. In India, the priorities appear to be a bit confused. In his treatise, Singh
(Singh 1991) makes an impassioned plea for the recognition of the right to water as against the
right to use water for irrigational or other purposes. He makes the distinction between positive
and negative rights. In a positive right (such as the right to education), the state is obliged to
ensure that water is made available to every human being. In a negative right, it is up to the
person to enforce his right to water. In times of scarcity, the poor man has no access to water.
Singh believes that the state should be obliged to provide him with drinking water and water for
domestic needs. This is probably the situation in most developing countries that face acute water
shortages. In these countries it is of vital importance that the positive right to water for drinking
and domestic purposes should be recognized. This should perhaps be the first priority in the list
of water uses.
For example, in recent years, two nations have developed a priority of use concept in their water
law. The Zimbabwe Water Act of 1998 prioritises primary purposes over commercial uses:
Primary purposes in relation to the use of water, means the reasonable use of water
a. for basic domestic human needs in or about the area of residential premises; or
b. for the support of animal life, other than fish in fish farms or animals or poultry
in feedlots;
c. for the making of bricks for the private use of the owner, lessee or occupier of
the land concerned; or
d. for dip tanks
(Zimbabwe Water Act of 1998).
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The South Africa National Water Act of 1998, too prioritises specific uses of water. In
particular it establishes a system of reserves for meeting basic human needs and a reserve for
ecosystems.
Meanwhile, the concept of a human right to water and sanitation has become more and more
important. Chapter 6 discussed this concept in more detail. The adoption by 122 countries at
the UN General Assembly of the Human Right to Water and Sanitation in July 2010 now
means that there are at least 122 countries that will have to think of ways to reconcile giving
priority to drinking water and sanitation purposes in their priority of use concept.
Point to Ponder: Do you think national institutions should have a different
priority of use than international institutions? Do you think that the right to
drinking water should be prioritized?

12.4

Classification of water

Water has traditionally been classified in different legal traditions as:

Surface (blue) water, which includes diffused surface water (the uncollected flow
from falling rain or melting snow), water in watercourses which includes all surface
waters contained within definite banks/boundaries such as running waters in rivers
and streams and still waters in lakes and ponds and coastal waters generally up to the
3 mile territorial limit;

Ground water, which includes the subflow of surface streams (the saturated zone just
below a river), underground streams or streams that flow below the ground-level, and
percolating waters that pass through the ground and accumulate in water tables and
aquifers; and

Grey water: Waste water flushing from households and the economic sectors of
society.

In addition, people now talk of green water water that is captured in green ecosystems.
Water has traditionally been treated as a separate entity from land, ecosystems, forests, the
environment etc. However, this is gradually changing and the boundaries between one system
and the next are becoming harder to define.
Points to ponder: Traditional institutions have tended to classify water into
different types in order to be able to develop separate legal rules for the water
bodies. However, water is surely, as the Hindu legal system explains,
indivisible. Is the tendency of the law to divide the waters according to their
"source" contrary to the principles of water resources management?

The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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12.5

Tradeable water rights

The trend towards public allocation, which gives a government a central role in water
management, is the dominant trend globally. However, a trend in the opposite direction is
towards a system of tradable water rights. Here, water rights have become in effect real
ownership rights, conferring the rights of access, exclusion and alienation to the right holder.
These rights do not prescribe the type of use, nor is there a clause of beneficial use. Water
rights are acquired through the market. Under this system the role of the right holder
increases, while that of government diminishes.
What are the
arguments pro
tradeable
rights?

One major argument in favour of the system of tradable water rights is that the market is the
most efficient mechanism through which the scarce water resource will be allocated to its
best use. This will, it is argued, facilitate the transfer of water from lower to higher value
usages, including the transfer of water from the agricultural to the industrial sector and to
urban areas. Another argument is that since water is scarce, a water right should be secure,
such that the right holder is willing to make investments which will enhance the efficient use
of the water.

What are the

concerns with
regard to
tradeable
rights?

The basic premise of the system of tradable water rights is that the water market will be
efficient. However, this may not be the case:

What could go
wrong with
tradeable
rights?

property rights in water are, in practice, difficult to define with precision;

market prices may fail to reflect full opportunity costs because of geographical limits
to the market;

information flows may be imperfect among potential buyers and sellers resulting
from wide geographic separation; i.e. high transaction costs;

water allocation through markets is less predictable than existing allocation systems;

markets tend to ignore negative externalities (changes in return flows, groundwater

levels and water quality); and

markets are likely to understate public good values, such as in-stream flows and
higher water quality.

If left on their own, water markets may have severe social and environmental effects which,
from the perspective of society, are undesirable. Consequently, mature water marketing
systems have developed sets of rules and regulations with a view to strike a balance between
market forces and social and environmental concerns. A first regulation, it is argued, should
condition water rights and their transfer on the rule of effective and beneficial use of the
waters. Other conditions and regulations applying to water marketing intend to prevent the
causation of negative transactional impacts on other users, special groups, communities,
society at large, and the environment. Thus, mature water marketing systems have developed
rules on the amounts of water to be transferred, protection of area of origin, environmental
impacts, community interests, priorities and preferences, water rights of aboriginal citizens,
and other concerns (Solanes n.d.).
The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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Case 12-1: Zimbabwe water law reform - Pieter van der Zaag

The Old Law

Although Zimbabwe was colonised by the English, its legal system fell under Dutch influence because of
Zimbabwes proximity to South Africa. Thus the earlier Zimbabwe Water Act of 1976 was not based on the
riparian doctrine, but derives from Roman-Dutch law.
The key features of the system of law until 1998 were:

All surface water was publicly owned;

All ground water was privately owned by the riparian, except that boreholes deeper than 15 metres were to
be reported (Matinenga 1995, 1996);

Rights to water for other than primary uses was based on the prior appropriation doctrine and granted by
the administrative court;

Primary uses of water enjoy preference over other rights;

The Government is allowed to sell or lease water rights;

River boards were allowed to be set up to regulate and supervise the exercise of rights to public water; and

Discharge of organic and inorganic matter into water bodies was prohibited.

The above law led to the allocation of water to land owners and those who developed first. By granting rights in
perpetuity, it created major problems of access even though in principle there were opportunities for reallocating water and for prioritising primary uses.
The above law was poorly implemented, especially the provisions regarding the re-allocation of water, and
inadequately enforced. The critique of the injustices in water access as well as the need for modernizing the
water act led to the adoption of the new Water Act of Zimbabwe of 1998 (Matinenga 1995, 1996).

The New Law

In 1998, on the basis of considerable negotiation, the new Water Act of Zimbabwe was adopted. The new act
abolishes the concept of private water and treats all water (surface and groundwater) similarly. No person shall
abstract water for any purpose other than primary purposes except in terms of a permit. Thus, also for
groundwater abstraction a permit is required. Further, the important role of outline plans for catchments
areas is retained in the new Act. An outline plan contains the major water uses within the river system
concerned, including those of the important public utilities, and any major amenity or recreation areas, areas
for development and measures for the conservation and improvement of the physical environment. The plan
also contains hydrologic information; and how the available water (in absolute volumes or in relative
proportions) should be allocated between public and private developments, and between uses of the different
sectors of the economy. The plan also indicates the maximum permissible levels of pollution. The outline plan
defines the proportion of the available water, which should be reserved for future use or for the benefit of the
environment. Finally, the outline plan gives the priorities in the utilization and allocation of water, taking into
The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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account policy guidelines provided by the Minister, and makes provisions for changes in priorities for the use,
development and allocation of water, where they are necessitated by changes in the availability of water or
social or economic priorities.

The new Act defines much heavier penalties for offences. Any person who

enlarges or obstructs any water works, alters or interferes with the flow of the water of any water works or of
a public stream or interferes with the distribution of the water, or extracts more of the water than he is
entitled to, fails to maintain and to keep the water works in repair; wastes water, does not take due precaution
to prevent the waste of water from the water works; hinders or obstructs any officer in the exercise of his
duties shall be guilty of an offence and liable to a fine of Z$ 50,000 (maximum) or twice the amount of any
profit or advantage unlawfully gained whichever is the greater; or to 2 years imprisonment (maximum) or to
both. Any person who persists shall be liable to a fine of Z$ 2,000 per day (maximum) during which he so
persists.

Some critical questions

The new Act abolishes rights granted in perpetuity and introduces permits with a limited period of validity.
Permits will from time to time be checked on beneficial use, to enhance efficient water use. However it
also implies the expropriation and de-privatisation of water rights. Will the permit system provides enough
security so as to induce investments in water works, which may enhance efficient water use and economic
development?

Under the new Act, permits will be granted by catchment councils. Public good values and wider public
interests in the water resource can be taken into account when granting a permit. However, does a permit
system have enough checks and balances to ensure transparency and efficiency, and to preclude rentseeking? Will the catchment councils be able to deal with their important responsibility of granting permits?

The new Act abolishes the priority system. This system clearly defined water allocation in periods of
shortage. It, however, disadvantaged new entrants and was thus considered inequitable. The new Act does
not prescribe how water should be allocated in times of scarcity, but gives the Minister, ZINWA and the
catchment councils guidelines and powers to deal with it. Does the lack of clarity negatively affect the
predictability of the allocation system? Is not the foremost purpose of a law to clearly define allocation of a
scarce resource?

The inclusive way of defining water implies that groundwater is treated in the same way as surface water.
Under the new Act, any water abstraction from a well or borehole, other than for primary purposes, will
require a permit. This is, in principle, a great improvement as the new Act recognises the unity of the
hydrological cycle. However, do we have sufficient knowledge about groundwater-surface water
interaction, to guide catchment councils and managers in deciding how much groundwater may be
permitted to be abstracted?

The new Act establishes catchment councils and subcatchment councils, tasked with operational functions.
The catchment manager will have relative large executive powers. The councils will enhance user
participation in decision-making. Is it consistent with the stated goals of decentralisation and user
participation that the catchment manager is appointed by, and accountable to the Minister only?

Water from government dams will not fall under the jurisdiction of the councils. Does this not segregate
again the water sector, which goes against the drive towards integrating water resources management, and
which may severely limit the scope of the councils?

The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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The permit system allows for new entrants to get access to water. Is this enough to redress the large
imbalance in access to water in Zimbabwe?

In Zimbabwe water is stored in storage works which are privately or publicly owned. The de-privatisation of
storage rights through permits may open up storage space for new entrants. Will the private owner of a
storage work be allowed to charge for storing of the water of third persons (e.g. because his permit to store
water is cancelled and granted to a third person)?

Point to Ponder: Which of the raised critical questions, would you judge to be
the most crucial for the success of the new law?

12.6
In which units
are water rights
expressed?

The system of proportional water rights

In most countries, water rights are expressed in absolute volumetric units per time unit. In
some countries or states, however, water rights are defined as a share in a water body. Such
systems may be found in various countries, but normally these are very localised ancient
irrigation systems, which have survived in tiny pockets of a country. Examples are the Subak
system of irrigation in Bali (Indonesia), tank irrigation in Sri Lanka, hill irrigation in Nepal,
qanat irrigation in Iran and Mexico. It has also survived in certain places in Spain, where
proportional water rights first emerged during the Muslim occupation around the turn of the
first millennium.
Proportional water rights often have emerged in places where the investment in the
development of a water source was high. The contribution of individuals in this investment
then became the key to define individual shares in the water resource.
In Chile water rights are defined in absolute volumetric terms per time unit. These rights are
tradable. However, in case of water shortage the entitlement to water is decreased in
proportion to the shortage occurring in the river basin or source of water. It should therefore
be noted that proportional rights may, in particular situations, also be traded on a market.

12.7

Property rights to natural resources

A property right is an enforceable right to undertake particular actions in a specific domain.

Property rights define actions that individuals can take in relation to other individuals
regarding some thing. If one individual has a right, someone else has a commensurate duty
to observe that right. The system of property rights in a given society (village, country) is a
specific form of an institution. The intensity of competition over resources increases in
proportion to the value of the resources relative to other alternatives (Demsetz 1967). More
clearly defined property rights will therefore emerge if the relative value of the resource
increases through more competition. This usually also implies that a resource which used to
be defined in terms of common property may gradually become defined in terms of private
property (e.g. arable land in some communal areas in Zimbabwe). There will be an increasing
need to define clear boundaries of private property. And this, in case of natural resources, is
often difficult. Boundaries become increasingly subject to dispute (Moore 1993, Fortmann
1995). Water is a special case, for which it is impossible to spatially demarcate rights. A right
The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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to a certain resource (e.g. water) may in fact relate to different levels, conferring increasing
control over that resource:

Access: the right of access to a resource, to withdraw it and use it; for instance the
right to divert a certain amount of water from a river at a specified site and use it for,
say, irrigation; this is in effect a user right (usufructuary right);

Exclusion: the right to determine who will have access rights, and how and to whom
that right may be transferred;

Alienation: the right to sell or lease the resource. The distinction between rights of
access and rights of exclusion and alienation is important. It is the difference between
exercising a right and participating in the definition of future rights to be exercised
(Schlager and Ostrom 1992: 251).

Only if you hold all three kinds of rights to a resource, you will have the full ownership of
the corpus of that resource (i.e. private property), and have the right of use and abuse. If
you, however, only have a right of access, you may be charged a fee for its enjoyment by the
holder of the right of exclusion and/or alienation. Rights to natural resources, more often then
not, do not confer the full ownership to the right holder. In the case of communal grazing in
Zimbabwe, communal farmers normally have the right to access, whereas exclusion and
alienation are prerogatives of the Chief, District Administrator or the Minister. In the case of
arable plots, communal farmers normally have also a say in who will inherit the plot
(exclusion), but they certainly do not have the right of alienation (selling, leasing). A water
right in Zimbabwe, likewise, involves the right of exclusion, but only to some extent the right
of alienation (namely only through the sale of the land to which that water right pertains).
Alienation is the prerogative of the Minister.

The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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Case 12-2: Challenges for water management in Colombia

Diana Guio (2004)

Water resources and water use in Colombia

Water Resources in Colombia are abundant. The water available per capita per year is five times the world
average (IDEAM 2002). However, Colombia faces many water problems. In addition to natural factors that
produce an unequal distribution and regulation of resources, concentration of water demand over the Caribe
basin, mainly in the Magdalena-Cauca watershed (see figure 14-2) is the main cause of water problems.

To Orinoco
River

Figure 12-1

Main Rivers in Colombia [Source: Ministry of Environment 2004]

The latter watershed has 22,5% of country surface area and produces 10,6 % of the available water. But the
water is demanded by 70% of the inhabitants (nearly 31 million people) and by economic activities that
generate 85% of GNP (Ministry of Environment 1996). The four main industrial corridors, most of the
hydropower plants (with and without dams) and most of the irrigation projects are located in the basin.
Water demand is concentrated in four sectors: agriculture (37%), households (59%) and industry (4%). The
national water extraction was 8,9 km3/year (FAO 2000 - data 1996). This demand involves a mixture of
unsustainable social practices that reduce the present provision and access of water resources. As a
consequence, the people suffer diverse water problems that are summarized in Table 12.2.

Water Management Problems

There are serious problems of water management in Colombia. The effectiveness of the water institutions is
low due to its poor problem-solving capacity, legal profusion and instability, dispersion of duties, continuous
changes into the water organisations, poor coordination, limited information management, weak integrated
forecasting and planning, fragmented decision-making, limited communication among sectors and weak
financial management are the main problems.

The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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WATER PROBLEMS
ASSOCIATED TO WATERSHEDS AND RIVER CONDITIONS

Problems associated with water availability

Reduction of water availability
Illegal appropriation of water sources
Problems to access water resources
Intensive use of aquifers
Water related disasters
River floods
Wastewater floods
Avalanches
Landslides associated with rainy periods
Droughts

Problems in the relationship water-land

Land Change uses in sensitive areas strongly related with
water regulation

Water related ecosystem damages

Damages to water related ecosystems (lakes, wetlands,
paramo, aquatic ecosystems, riparian forest)
Conflicts among entities about who and how do solve the
problem

Pollution
Contamination of surface waters
Contamination of groundwater

Reduction of Navigability

ASSOCIATED TO SERVICE DELIVERY/ CONDITIONS IN EACH KIND OF USE

Drinking water
Insufficient coverage of services
Illegal collection of water
Informal collection of water
Interruption of services
Low water quality for human consumption
Water losses
Financial problems

Irrigation
Coverage of services
Conflict of interest
Administrative problems
Financial problems

Navigation
Reduction of navigability

Sanitation
Deficiency in sewage collection
Deficiency in drainage system
Damages in sewage systems
Low quality of effluents
Contract problems
Financial problems

Hydropower
Depletion of adequate conditions for generation
Conflicts with other sectors and communities

Fishery
Reduction in yield

Figure 12-2 Clusters of water problems in Colombia

This means that

The capacity to acquire, use and produce knowledge about water issues in an integrated manner is weak.
This capacity is vital to understand the problems, define the solutions and learn lessons from managerial
experiences.

The capacity to mobilize support and promote dialogue is limited. Water management is a multistakeholder process, where there is a natural incongruence of aim, interests and power among parties.
The best mechanism to deal with such complexity is based on negotiation and dialogue. However, in the
Colombian case, the decision making tends to be sectoral, thus fragmented.

The inter-sectoral

communication and coordination is weak, and the sectors tend to implement solutions without regard to
the interest of others.

In addition, water institutions have a strong interplay with land, ecosystems and territorial development
institutions. Such institutions also have similar problems.

How Is Water Law Arranged?

Colombia does not have a unified water law. The main laws and policies are related with environmental laws. In
addition, several sets of rules deal with aspects of integrated water management.
The state is the owner of all sources of water. Hence, water is an inalienable, public resource. Private
ownership is only possible when the water source naturally evaporates or returns to ground in the owners
land. It also establishes that private ownership is lost after three years of no water use. The state not only owns

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the waters but also the courses, the banks, the river banks up to 30m, the glaciers and the subsoil layers that
contains groundwater.
The water use right can be acquired by direct use or by administrative methods. In the first case, inhabitants
have the right to free use of water for basic needs exclusively. In this case it is not possible to transport water
by pipeline or any other permanent method. In the second case, water use concessions are possible by request
to the environmental authority. Such authority has the duty to verify the water availability and determine the
possibility of new users, as well as determine the final water concession. The concession is not tradable, but
the rights can be transferred. The concession period is defined according with the use. If reallocation is
needed, the authority can modify concessions by resolution. The requestor needs approval from the authority
if new terms of concession are wanted (Colombia 1974, 1978). The use priority is as follows: Human
consumption, Irrigation, Livestock consumption, Industrial use, Energy generation, Mining projects, Wood
transportation, Fishing and aquaculture, Recreation and aquatic sports, Medicinal uses.
In special cases, it is possible to deny a concession of water in order to conserve, restore and manage water
resources, or due to water quality problems.

How Is Water Management Arranged?

At national level, several agencies have duties related to water use and water management. In Figure 12-3, the
structure of executive branch can be seen, including the related ministries.

Figure 12-3 Executive branch structure. [Note: underlined, organisms related to WRM. In bold letters, the
organisms with the main duties. In italic, the main organism that administers the financial resources]
The Environmental Administration is organized as a system, where water is one more of natural resources to be
managed. This system is called the National Environmental System SINA. SINA includes the public, private and
communitarian organisations that work on environmental issues. It also includes the rules and financial
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resources available in order to reach the sustainable development goal. The SINA structure can be seen, with
modifications regarding WRM issues.

Figure 12-4 Water Management Organisational structure [Source: Guio, 2004]

The Ministry of Housing, Environment and Territorial Affairs is the organisation in charge of Natural resources
management, river basin management, land use, territorial development, drinking water and sanitation in
order to safeguard the quality of environment and human welfare.
The National Environmental Council is the inter-ministerial and territorial coordination forum. IDEAM is the
assigned organisation in hydrology, meteorology and environmental research (Colombia 1993).
The Autonomous Regional Corporations CARs - are decentralized organisations that implement the
environmental policies at regional level. Regarding WRM, they are in charge of the water concession process,
river basin planning and protection, water quality and quantity monitoring, collection of water fees and taxes,
participation in water issues, advising municipalities and departments on land use, territorial planning and
project formulation. CARs can also make infrastructural works. At regional level, CARS also have a role in
prevention of and attention to disasters. Until 1993, CARs were development corporations that covered only
some areas. After 1993, the entire country is covered by CARs jurisdiction.

Key Challenges In Water Management

Colombia has several problems of general governance that affects water resources management. The main
issues are:

There is a structural weakness of the justice system that strongly reduces the effectiveness in the punitive
system linked to water resources management. Sanctions that should be addressed by the judicial system
can take a long time, hence impact on illegal behaviour is less than it should be.

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There are strong limitations for accountability. Since the responsibilities are not clear in the law, it is
difficult to ensure accountability. In addition, the surveillance organisations have capacity constraints to
address complaints from the public in a short time.

Corruption is widespread. Water related authorities at national and regional level have been identified as
highly vulnerable to systematic corruption. This problem also affects the justice system, legislative
authorities, ministries and surveillance agencies.

State capture by interest groups in order to influence decision making process. More than 70% of
enterprises consider that state organisations favour private interest to the detriment of public welfare.

There are illegal practices that are linked with internal warfare and drug traffic that produce local or
regional inequities about the practice of rule of law principle.

12.8

Towards Integrated Water Resources Management

As was already observed, most existing laws on water issues deal with specific issues and do
NOT represent a comprehensive approach to water resource management. They cover some
aspects of ownership, some aspects of pollution and some aspects of water quality standards.
In some countries there is confusion on the rights of the state and the rights of the individual
(India, Singh 1991). In other countries the laws differ from state to state (USA, Leeden et al.
1990). In most countries there is no integration of existing policies with existing laws and
institutions. In very few countries is there an attempt to integrate the different aspects of
water resource management into one comprehensive document.
Why is there a
need for
integration?

However, there is growing awareness that comprehensive water resources management is

needed because:

fresh water resources are limited;

those limited fresh water resources are becoming more and more polluted, rendering
them unfit for human consumption and also unfit to sustain the ecosystem;

those limited fresh water resources have to be divided amongst the competing needs
and demands in a society;

techniques used to control water (such as dams and dikes) may often have
undesirable consequences on the environment; and

there is an intimate relationship between ground water and surface water, between
coastal water and fresh water, etc. Regulating one system and not the others may not
achieve the desired results.

Hence, engineering, economic, social, ecological and legal aspects need to be integrated, as
well as quantitative and qualitative aspects, and supply and demand. Furthermore, the
management cycle (planning, monitoring, operation & maintenance, etc.) needs to be
consistent and integrated.
For these reasons it is important to have a comprehensive, integrated approach to water
management and law at the local, intermediate and national level (Caponera 1992, Koudstaal
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Page 14

et al. 1992). An integrated approach is the only way to achieve sustainable water resources
management. Chapter 5 has elaborated on the progress made on the concept at international
level. Most developed countries are trying to implement this concept in the domestic context.
Many developing countries have subsequently adopted policies on integrated water resources
management, very often stimulated by aid agencies.
Why are plans
alone not
enough?

Even if a nation does draw up a policy plan for water management, this does not mean that it
will be implemented and become operational. India prepared a National Water Policy in 1987
which mandated equitable distribution of water resources and sustained-yield use. However,
the policy had little effect because it was not embodied in operational laws, rules and
administrative orders (Singh 1991). A policy must not only be accompanied by laws for its
implementation but also by bodies to execute the obligations imposed by the law.
Because policy planning alone cannot ensure implementation, designing a comprehensive
legal framework for IWRM is not an easy process. It should involve a critical appraisal of the
strengths and weaknesses of the existing legal framework and of the institutional reality,
while having due regard for the local physical and social conditions. The literature reveals
that there are a number of reasons for the success and failure of IWRM in the developed
countries (see Table 12.1).
Table 12.1: Reasons for IWRM success or failure in Developed Countries

Reasons for Success

1. Their economies respond to the regulatory
instruments (e.g. direct controls such as land use
plans and utility regulation, economic instruments prices, tariffs, subsidies etc. and encouragement of
self-regulation (Davis and Threlfall, 2006;
Dellapenna, 2009; Viessman, 1998).
2. Availability of and effective data collection
networks, risk management tools, e.g. for floods and
droughts and effective communication and
information process (Mitchell, 2006; McDonnell,
2008).
3. Participation relatively successful because of lower
power distance between various levels of society and
between sexes (Hooper, 2005).
4. Adequate capacity to enforce laws and regulations;
good monitoring (Galloway, 2003; Coulomb, 2002).
5. Ability to overcome vertical and horizontal
fragmentation in water management (Mitchell,
2006).
6. Existence of a strong enabling legislation based on
sustainable development (Rogers & Hall, 2003).
7. Application of IRBM institutional models (Hooper,
2005)
Source: Boateng-Agyenim 2011.

Reasons for Failure

1. Institutional structures
not supporting
integration (Biswas,
2004; Margerum 1995:
41; Anderson et al,
2008).
2. Limited or no horizontal
coordination that
impedes efficient
implementation and a
very weak vertical
linkage with national
policy (Ballweber, 2006).
3. Too many issue at time
leading to too many
implementing tools at a
time and adding to the
complexities (Mitchell,
2006; Hooper, 2006;
Allan, 2003)

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There are also several reasons for the success and failure of IWRM in developing countries.
Table 12.2: Strengths and weaknesses of IWRM processes in Developing Countries
Strengths
1. Allowing local water rights to work
in the conservation of water
resources and distribution of water
(through
local
negotiations,
agitations, customs and traditions
based on the principles of
enforcements of personal positive
behaviour and equity). Local rights
are participatory in operation, selfregulatory,
sensitive
to
the
vulnerable (e.g. widows & the poor),
and able to contain conflicts.
2. Improvement and modernization of
irrigation and drainage infrastructure
projects (local actions) since there
is so much funding and monitoring
by donor community together with
expert support/assistance.
3. Preparation and implementation of
Integrated Water Management plans
in selected/limited areas,
4. Relatively, richer urban centres
where public water supply systems
are under the ambit of direct
influence of the formal institutions.
5. Where top-down model management
approaches which depends on
professionals to lead the planning
process because they have clear
understanding of a collaborative
planning process
and where
stakeholder inputs are needed

Weaknesses
1. Comprehensiveness
requires
huge
administrative capacity and financial
resources which are not readily available
2. Conflicting
policies
with
some
responsibilities
of
state
bodies
overlapping creating confusion over
implementation.
3. Definition of Acts not adequately
capturing what is envisaged in policy
documents
4. Existing formal water rights are complex
to operateissued under different water
regimes and alien to pre-colonial Africa;
so many water users with flexible,
changing off-take structures leading to
difficulty in monitoring all abstractions
5. Central governments unwillingness to
transfer water rights to WUAs
6. Linking water
management
with
conventional theories of common
resource management. (In Sub-Saharan
Africa for example, water is more than a
common resource- it is a basis for life
for agro- and pastoral societies and its
allocation mechanism is firmly anchored
in the deeper socio-cultural and economic
context that cannot be simply understood
by mainstream economic, social, and
legal principles
7. Little connection of the water economy
with public systems and formal
organisations through which policies,
laws and water administrations operate.
8. Decentralisation not accompanied by
changes in power relations.
9. Limited ability to enforce laws and
regulations

Source: Boateng-Agyenim 2011, based on Kidd, 2009, IWMI, 2007; Sokile & van Koppen,
2004; Biswas, 2004; Cleaver and Toner, 2006; Mitchell, 2006; Mostert, 2006; Davis and
Threlfall, 2006; Cairns, 2003; Bruns and Meinzen-Dick, 2003; Berck, 1996; Jaglin, 2002;
McDonald and Ruiters, 2005; Hearne, 2004; Ballweber, 2006; Hall, 2009; Dellapenna, 2009.

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Structural and regulatory functions

The peculiar characteristics of water stem from its unique physical, chemical and biological
attributes, and its crucial environmental, economic and social roles for which there are often
no substitutes. This places a heavy burden on water rights systems, as these systems are
expected to strike a balance among the different demands and requirements, informed by
clearly defined principles.
What are the
demands on a
legal
framework?

Once the principles of water resources management have been clearly defined in a policy, a
country may review its laws and regulations, and formulate a new legal framework. A legal
framework should perform both a structural function and a regulatory function. The
structural function determines the manner in which private users will relate to the resource,
and to other users. Clarity, security and transferability are three main attributes of this
function, and should be reflected in the contents of permits and rights to water in terms of
access, exclusion and alienation. The regulatory function of a legal system aims to defend
first and second order policy principles, and will enshrine principles such as equity,
efficiency and ecological integrity.

What are the

concerns with
regard to
tradeable
rights?

When setting up a legal framework for Integrated Water Resources Management, the
following aspects may be addressed: international catchment management, integrated
planning, water rights or permits, arbitration and appeal, control, policing and sanctioning,
institutional development, financial accountability, delegation and decentralisation,
participation of water users and stakeholders, commercialisation and privatisation, demand
management, standards for water quality, emission standards, safety standards, financial
arrangements. Many of those aspects are discussed in this unit.

At which levels
are legal
arrangements
necessary?

When society gets more complex, with an increasing and more diverse water use, a legal
framework for water resources management needs more differentiation and flexibility.
Normally this requires functional differentiation between constitutional issues (related to
property rights, security, arbitration), organisational issues (regulation, supervision, planning,
conflict management), and operational issues (water provision etc.) (World Bank 1993).
These issues are handled at three different levels:

Constitutional level: the activities being governed by conventions of international

organisation, bilateral or multilateral treaties and agreements, the national
constitution, national legislation or national policy plans.

Organisational level: activities at this level are defined by (federal) state regulation,
ministerial regulation, regulation or plan of a functional public body (national water
authority, (sub) catchment authority), provincial regulation or plan.

Operational level: activities being governed by subcatchment-, district-, town

regulations, bye-laws of semi-public or private water users organisations etc.

The above ideas and insights allow some general remarks to be made on the institutional
requirements for integrated water resources management. The most important issue in
dealing with water resources is to ensure an institutional structure that can coordinate
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activities in different fields that all have a bearing on water. Linking structures are crucial.
Through a process of vertical and horizontal coordination it is possible to integrate different
aspects of the water issue at different levels. Linking can be facilitated if a countrys water is
managed following hydrological boundaries (river basins, which may be subdivided into
catchment areas and sub-catchments).
Another important issue relates to the allocation or distribution of water rights in a society.
As good quality water should be treated as a scarce resource, very often the competing needs
in a society have to be balanced and prioritised. This obviously requires criteria which often
derive from first order principles, such as efficiency (economic criteria), equity (social
criteria) and ecological integrity (environmental criteria). An institutional structure that
allocates water will have to be able to consider these criteria, weigh them, and come to
allocation decisions in a transparent manner.
How can
authority be
distributed?

When managing water resources, there is a choice of how to delegate authority over water.
The choice is between a centralised, a deconcentrated, and a decentralised water authority.
A centralised water authority regulates all activities from one central place. If the central
authority is located in different places, this leads to deconcentration of the central authority.
If the central authority delegates responsibilities to regional, basin, or local authorities this
leads to a decentralised water management system. The growing complexity of water
management induces a need for management at the lowest appropriate level (also known as
the subsidiarity principle), resulting in the delegation of functions to the decentralised
organisational (regulatory) and operational levels. In general, the organisational (or
regulatory) level may have a mandate over a river basin, while at the operational level
concessions may have been delegated to sub-catchment areas or to user groups
(municipalities, irrigation districts).
Once agreement exists over what type of functions and decisions can best be made at what
level, a next policy option is that of privatisation. Operational functions often involve the
provision of specific services in water sub-sectors, such as irrigation and drainage, water
supply and sanitation, and energy. The production function may, in principle, be privatised;
but only if the nature of the good (or service) is fit for it, and if governments regulatory
capacity is strong enough to prevent monopoly formation or other market failures.

What are the

risks of the
user pays and
polluter pays
principle?

Financial and economic arrangements are complex issues. The maxim water is an
economic good and should be priced according to the principle of opportunity costs, as well
as the user pays and polluter pays principles carry within them a danger, especially in
countries lacking sufficient resources and with a skewed distribution of wealth. In such
countries the user pays principle may boil down to who can pay is allowed to use or
pollute water. Because of historical inequities in society, this may result in a large group of
the population having limited access to water resources. This often creates severe social
problems and should be considered unconstitutional because it violates a first order principle
(equity). Therefore a balance has to be found between water pricing which ensures economic
sustainability on the one hand, and the social requirement of sufficient access to clean water,
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Page 18

on the other (i.e. efficiency versus equity). Instruments that may assist in achieving a balance
between efficiency and equity include:
How can equity
and efficiency
be balanced?

recovery of real costs by functional (catchment) agencies;

financial independence (and accountability) of implementing agencies; and

water pricing by means of increasing block tariffs, and other forms of cross-subsidies.

A wider concept than water pricing and cost recovery is demand management, which is the
use of economic and legal incentives in combination with awareness raising and education to
achieve more desirable consumption patterns, both in terms of distribution between sectors
and quantities consumed, coupled with an increased reliability of supply.
How can
environmental
and economic
tensions be
dealt with?

Environmental sustainability need not conflict with the principle of economic sustainability
in the sense that activities not priced often waste water resources, if not the resource base
itself. In addition, environmental costs or environmental externalities should be clearly
accounted for in economic impact assessments, although this is often not properly done. This
points to the need for integrating the assessment tools, as suggested by UNEP (1997):
assessments have to be carried out of the likely environmental, economic, and equity impacts
of any water resources measure or development, the so-called EIA3. The vital inclusion of
land use appraisal in water management assessment studies is often also omitted. Experiences
in the field of environmental protection or environmental reconstruction show that positive
incentives (e.g. subsidies) for practices that restore the ecology are rendering more effect than
negative incentives (sanctions, fines) on practices that damage the environment.
Another prerequisite for success is the involvement and participation of water users and other
stakeholders. Control without consensus is hard, if not impossible, to reach. The basic
premise should be: those who have an interest in the water resource and benefit from it have
the duty to contribute to its management and upkeep (in money and/or in kind) and have the
concomitant right to participate in decision-making. This leads to the maxim of the water
boards in The Netherlands: interest taxation representation.
Moreover, the wider public may play an important role in the difficult process of monitoring
this fluid and fugitive resource; reference is here made to the locus standi principle, and to
the important role played by voluntary associations and pressure groups.
Even a perfect legal and institutional framework (assuming that this could ever exist) cannot
function without motivated people with sufficient awareness, know-how and skills. Human
resources are scarce. It requires investment in (further) training to build up and maintain the
resource.

12.9

Conclusion

This unit has shown that within specific countries there are multiple layers of institutions and
there is no guarantee that the new institutions replace the older ones. This is important to

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keep in mind in designing new institutions. Also it has been shown that each choice of
allocation has it benefits and drawbacks

12.10

New Concepts and Terms Used

Integrated water resource management Priority of use Proportional water rights
Public trust Tradeable water rights Usufructuary rights

12.11

References and Further Information

12.11.1References
Abernethy, Charles L., 1997, Water management in the 21st century: problems and challenges. Development and
Cooperation 2/1997, March-April. Frankfurt; pp.8-13
Allan, T. (2003). IWRM/IWRAM: a New Sanctioned Discourse? Occasional Paper 50, SOAS Water Issues Study Group,
London, University of London.
Anderson, A, E. Karar and S Farolfi (2008), Synthesis: IWRM Lessons for Implementation, Water SA (34) 6.
Ballweber, J. A. (2006). A Comparison of IWRM Frameworks: The United States and
Berck, P. (1996). Natural Resource Prices: Will They Ever Turn Up? Journal of Environmental Economics and
Management, 31, Academic Press, Inc.: 65-78
Biswas, A. K. (2004). Integrated Water Resource Management: A Reassessment, Water International 29(2): 248-256.
Boateng-Agyenim, J. 2011. Investigating Institutional Arrangements for Integrated Water Resource Management in
Developing Countries: The Case of White Volta Basin, Ghana, VU University PhD Thesis.
Bruns, B. and R. Meinzen-Dick (2003). Framework for Water Rights, International Conference on Water Rights, Hanoi,
Vietnam.
Burchi, S., 1994, Preparing national regulations for water resources management: principles and practice. FAO Legislative
Study 52. FAO, Rome
Cairns,, J. J. (2003), Integrating Top-down/Bottom-up Sustainability Strategies: An Ethical Challenge, Ethics in Science
and Environmental Politics (ESEP), Inter-Research (http://www.int-res.com). Accessed January, 2009.
Caponera, D., 1992, Principles of water law and administration. A.A. Balkema, Rotterdam
Ciriacy-Wantrup, S.V., 1985 [1967], Water economics: relations to law and policy. In S.V. Ciriacy-Wantrup, Richard C.
Bishop and Stephen O. Anderson (eds.), Natural resource economics: selected papers. Westview, Boulder; pp. 77-103
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Cleaver F. & Toner (2006). The Evolution of community Water Governance in Uchira, Tanzania: The Implications for
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207-218
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Implementation, Journal of Contemporary Water Research & Education, Issue 135:86-99.
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and Politics of Water. Spring Science, 373-390
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DWAF, 1997, White paper on a national water policy for South Africa. Department of Water Affairs and forestry, Pretoria

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Fortmann, Louise, 1995, Talking claims: discursive strategies in contesting property. World Development 23(6): 10531063
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Paso
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Hall, N. (2009). The North American Great Lakes. In J. Dellapena and J. Gupta (eds), The Evolution of the Law and
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Issue 24.
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Jaspers, F., 1998, Integrated water resources management in a nutshell. Unpublished paper. IHE, Delft
Kidd, M. (2009), South Africa: The Development of Water Law, in J. Dellapenna and J. Gupta (eds.) (2009), The
Evolution of the Law and Politics of Water, Dordrecht, Springer Verlag.
Koudstaal, Rob, Frank R. Rijsberman, and Hubert Savenije, 1992, Water and sustainable development. International
Conference on Water and the Environment; Development issues for the 21st century. Keynote Papers; 26-31 January
1992, Dublin
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presented at the ZFU workshop entitled `Water development for diversification within the smallholder farming sector'.
Harare, 30 May 1995
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agriculture: current practices and future prospects'. Harare, 11-13 March 1996
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European Communities: a comparative survey. The Commission of the European Communities. Graham and Totman,
London
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Moore, Donald S., 1993, Contesting terrain in Zimbabwe's Eastern highlands: political ecology, ethnography, and peasant
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Water Resource Management in Tanzania, WATERNET/ WARFSA 4th Symposium, Gabrone, Botswana.
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Technical Advisory Group, Global Water Partnership. Windhoek, November 4-8, 1996
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requirements of competing water user sectors. Water Research Commission, Pretoria
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International Negotiation, December
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12.11.2Recommended reading
FAO, 2003, Preparing national regulations for water management Principles and practice. FAO Legislative Study No 80,
ISSN 1014-6679
World Bank, 1999, Initiating and Sustaining Water Sector Reforms: A Synthesis [South Asia Rural Development Series
1999/12], ISBN 0821344609
The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag.

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