Legal and Regulatory Framework for the Implementation of IWRM

1. National Water Legislation Legal and Regulatory Framework for the Implementation of IWRM

2. Goal and objectives of the session Goal The goal of this chapter is to present components of an effective national legal and institutional framework and topics related to the implementation of IWRM in need of reforms. Objectives • To understand the importance of water legislation in support of IWRM principles • To understand the reforms that need to be carried out for a successful implementation of national water legislation for IWRM

3. Outline presentation • Introduction: the big picture on water legislation • Water policy translated into legislation • Key elements for an enabling environment for a “IWRM-supporting water legislation” • Recommendations for water legislation drafting

4. Introduction • A well-conceived water policy facilitates the implementation of water legislation. • If the goal of the policy is IWRM, it does not help if this policy is not translated into coherent legislation and if there is no institutional support. • IWRM will not take place if the legal framework is not adapted and the necessary institutional arrangements are not made.

5. Think about it. “Omnis definitio in jure periculosa est.”(Every definition in law is dangerous.) • What is the legal nature of water? • Who owns water? • If water is a public good, does everyone have the same water rights? • Which instrument established how water resources are managed? Is it all about legislation?

6. What is water legislation? Until recently, there was no well-defined legislation called water legislation passed by a law-making body (parliament). Different water-related legislations have been drawn up over time to deal with the different water purposes.

7. What is the Policy-maker’s challenge? To find a way to integrate the different water- related legislations and to develop a coherent water policy that is conducive to effective national water legislation.

8. Why do we needa “revitalised” water legislation? • A lack of IWRM approach in legislation or in practice • Inappropriate or ineffective institutional set-up • Fulfilment of international obligations • Legislation ought to emphasise the principles and concepts in support of IWRM, as we have seen in Chapters 1 and 2: holistic management, sustainability, equity (gender balance), economic value of water and governance. • Legislation should also be tuned with what we might refer to as “technical” issues supporting IWRM, such as a river basin approach.

9. What are the four issues tied to achieving effective IWRM-supporting Water Legislation? • Legal entitlement: What is the scope of the resource and who is entitled to use it? • Framework for allocation: In the case that all needs cannot be met, who is entitled to what quantity or quality of the resource? • Compliance verification, dispute avoidance and resolution: How are rights and obligations enforced? • Institutional mechanisms, including governance issues: Who is responsible for implementing or overseeing the implementation of the legislation?

10. What are the recommendationsfor sound water legislation drafting? • Use language/terminology that has been tested in previous controversies. • Avoid uncertainty when more than one water-related legislation may be involved. • Avoid drafting detailed and wordy legislation. It needs to tread a careful line between completeness and flexibility. • Provisions should be consistent, coherent and constitutionally compliant.

11. Part I: General Provisions Definition of general terms used in the Act Authorities responsible for enforcement of the Act Part II: Ownership of water resources/Classification of water Surface water (Public water, Community water and Private water) Groundwater (Public water, Community water and Private water) Part III: Conservation and protection of waterresources Ecosystem protection and environmental sustainability Minimum flow Part IV: Management of water resources Institutional arrangements (river basin management, catchment management agencies, etc.) Powers, mandates and responsibilities Rights, obligations and roles of the stakeholders (water users associations, gender role, etc.) What is the general outline of a basic Water legislation or Act? (1)

12. Part V: Regulation of Water Services Water pricing PPP, concession and privatisation Part VI: Water Allocation Domestic water and right to water Agricultural, aquaculture, coastal management and industrial water Water permit, licence and authorisation Dam control Water trade/allocation/transfer Part VII: Dispute settlement Courts and tribunals Arbitration and ADR techniques Part VIII: Infractions to water resources and sanctions Police powers of water services officers Procedure Penalties Part IX: Transitional and final provisions Existing water rights and entitlements of indigenous International cooperation on shared watercourses (rivers) What is the general outline of basic Water legislation or Act? (2)

13. Think about it. Are current legal and institutional frameworks conducive to IWRM planning and implementation? How? And if not, why not? National water legislations have to be representative. Can they be an IWRM driver if the population is not aware of the need for IWRM?

14. Conclusion National water legislations have to be genuinely representative. Customary practices may not be left behind. The next chapter explores customary practices and puts it in the framework of manual goals.