1. IHP-HELP Centre for Water
Law, Policy & Science
UNESCO
Current developments in national
water law frameworks
30th May 2011 Andrew Allan

2. Outline:
1. Factors influencing water law change
2. Permitting
3. Environment
4. Integrating flood management
5. Land use management / source protection
6. Right to Water
7. Institutional coordination
8. Problems
9. Conclusions

3. Factors influencing water law change:
• Increasing scarcity
• Public health
• Environmental concerns
• Water/energy nexus
• Donor demands for implementation of IWRM
• Equity
• International obligations
• Cost recovery concerns
• Climate change
population growth / movement

4. Permitting
In many countries (e.g. India), permitting
(where it exists) is done by sector, principally
regulating mainly surface waters
IWRM paradigm (the ideal, if not the
practice) demands cross-sectoral permitting,
combined for both surface AND ground
water

5. Permitting (cont)
• Cross-sectoral permitting increasingly present
in national legislation (incl. in Ethiopia),
though in practice limited by number of
factors (institutional, economic dominance of
single sectors, monitoring, financial)
• Difficulty in balancing relative security of
supply demanded by investors with broader
protection of security of supply for
environment and priority users (domestic)

6. Permitting (cont.) –
variability
• Capacity to vary / suspend / terminate permits
necessary if resource is not to be over-allocated,
and for protection of key sectors (e.g. domestic,
environment, strategic). Especially important in
context of increasing variability
• BUT capacity to vary not always present.
Question of whether compensation payable (e.g.
in USA, Ethiopia) – variation can be expensive.
• Often done through imposition of protected
area, controlling all uses including free uses
potentially

7. Environment
Historically, water use rights allocation and
management based on protection of property and
customary rights, with environment protection
incidental at best.
Environment increasingly protected through e.g
reserves (South Africa and Ethiopia), environmental
flow requirements, ecological quality standards
(South Africa, EU, Australia, New Zealand)

8. Environment
• Still questions over which prevails in
situations of extreme scarcity – but see also
water use permits based on share of available
water, rather than volumetric allowance
(Australia)
• Problems caused by unsympathetic judiciaries
used to protecting property rights and lacking
appreciation of environmental protection

9. Integrating flood management
• Increasingly moves to integrate flood management to
water use allocation regimes – e.g. in EU (Flood
Directive), work done by WMO. Also in Water
Resources Proclamation.
• Some states have historically virtually based water
management on flood risk alleviation (Indian north
east, Japan) – can lead to overly technical /
construction approaches neglecting response
• Full integration demands detailed knowledge of flood
risk, strategic use of land management, financial
incentives – implementation immensely complicated

10. Land use management / source protection
• Use of land management to protect e.g. drinking water
sources has been used in many places, though with less
focus on groundwater. Now expanding to include buffer
zones for ecosystem protection
• Increasing awareness of the economic benefits of source
protection vs. cost of treatment of polluted water (e.g.
New York Catskills – 90% saving), but complicated to
maintain inter-community trust
• Growing recognition of long term impact of groundwater
contamination and difficulty of remediation

11. Land use management / source protection
• Increasing focus on management of diffuse
pollution (from e.g. agricultural run-off,
chemical storage) through e.g. voluntary
codes of conduct (England) and even
enforceable standards (e.g. in Scotland)
• Problems with proving causation
• Importance of education, trust

12. Right to water
• Limited presence currently in national legislation – Ethiopia has
qualified right (dependent on conditions) in Constitution
(reflected in Water Policy); South Africa commonly regarded as
most progressive state on this issue (though note jurisprudence
on this)
• If right is to be implemented, importance of groundwater rises
dramatically – normally clean source, available locally without
costly transfer schemes or large scale reticulated water supply
networks. Emphasises importance of source protection control
• More activity on this at international level than national – state
practice does not reflect this priority as yet (polarising debate
currently)

13. Institutional coordination
• Consolidation of water resource management
duties ideally within single agency, but reality in
many countries is sectoral splits; quality, flow
and quantity separated; ground and surface
waters not connected.
• Basin organisation is also ideal, though national
application of this ideal often mixed. Political
realities push against this, and local politics often
more immediately influential than national goals

14. Institutional coordination
• Managing institutions vertically and horizontally
is especially important in emergency situations
(e.g. floods), so law must be very clear on
respective functions, duties, powers and triggers
for involvement
• Idea that “apogee” bodies can initiate and direct
inter-sectoral coordination. Need not have full
allocation responsibilities, but provide policy
drawstring that pulls water relevant agencies
together

15. Problems
Financial and human resource limitations
Quality / extent of monitoring networks; limited understanding of
surface and ground water interactions
Inward looking ministerial / departmental approaches – consequences
for WR Ministries
Capacity / power to react to resource availability
Administrative boundaries and mutual antipathies – and problems
caused by mixed reporting lines at federal and state / regional levels
Political issues associated with balance between long term planning
and short term resource management

16. Conclusions:
• Importance of extra-legal factors – monitoring networks, data
availability, financial resources, education, political realities
• Changing legislation does not work immediately
• Codification (rather than sectoral approaches to regulation)
could be essential – but broad, then more specific is more
realistic (South African situation is not easily replicable). Allows
flexibility of standards within broad principles
• Quality of coordination critical – institutional, community,
international.
• Participation of users in decision-makers is crucial for
adaptability

17. THANK YOU!