In recognition of the strategic nature of water resources, and of their vulnerability to depletion and pollution in the light of global climate change, population growth and economic development, the Governments of African countries are making significant efforts to introduce comprehensive policy and legal frameworks for water resources management. National water policies and laws adopted in the past decades largely reflect the principles formulated at Dublin and Rio de Janeiro in 1992, as well as the need to address the challenges posed by science and technological progress. Among other, Integrated Water Resources Management (IWRM) within hydrographic boundaries is now widely acknowledged in Africa as the approach to be followed to facilitate equitable allocation of, and access to, water resources, as well as resource conservation and protection. Also, legal obligations in connection with transboundary water resources, of which the African continent is well endowed, are best met when such an approach is adopted. However, if these African policies and laws have been welcomed as progressive, since they support IWRM, their implementation tends to be weak, for a number of reasons. Firstly, the laws tend to replicate the practice of countries elsewhere in the world, particularly in Europe, without considering the local institutional capacity and the resources available. Secondly, implementation is often constrained by the absence, or obsolence, of regulations under the laws. Thirdly, new water laws often enter into conflict with pre-existing situations, which are regulated by laws concerning other sectors. A further important weakness in the implementation of water legislation lies in the absence, from the legislation of some countries, of a clear definition of the features of the water permit system. Finally, the mechanisms for user and stakeholder participation in water resources management provided for by water legislation are often inadequate. This paper discusses the problems faced in implementing water legislation in Africa, and in particular in the Greater Horn of Africa, that is, the region of the Intergovernmental Authority on Development (IGAD), which covers Djibouti, Eritrea, Ethiopia, Kenya, Somalia, South Sudan, Sudan and Uganda. It aims at demonstrating that while the value of IWRM-supportive water legislation should not be questioned, implementation could pose a serious challenge to certain countries. Those drafting the legislation should therefore opt for provisions that favour the implementation of measures step by step, taking into account the capacity and resources available. Perfect is the enemy of good, and there is always room for incremental improvements.
The paper is based on an analysis of the existing policy, legal and institutional frameworks of the countries of the Greater Horn of Africa, and on the professional experience of the author in the region.
Forestry management has enormous implications for both water supply and water quality. Deforestation to expand agricultural production can significantly impair water quality through increased nutrient concentration and resulting eutrophication. Wildfires resulting from poor forestry management can similarly impact water quality through erosion and runoff. Poor forestry management can also lead to the proliferation of invasive species that reduce overall water supplies. Despite this relationship between water and forests, few legal or economic incentives exist in many jurisdictions to encourage improved forestry management. This article compares and contrasts different legal challenges and opportunities in the Paute River basin in Ecuador and the Verde River basin in the United States of America. In Ecuador, FONAPA is an important water fund project aimed at improved forestry management in the Paute watershed, which includes a major hdyroelectric project (Mazar) and the ETAPA drinking water utility. It was created in 2008, and includes a public-private partnership between universities and non-governmental organizations. This water fund facilitates water conservation through forestry management for more than 1 million people, and guarantees water for hydropower projects. In the same year that FONAPA was created, a new Constitution was approved in Ecuador that recognizes water as a human right, and establishes the State obligation of its regulation and protection. Ecuador also approved a new water law given the new responsibilities delegated to sunational governments under the new constitution, including the protection of water sources and forests analyzed under this article. The program in the Paute basin may benefit from examining how Arizona has developed markets for water supply rehabilitation projects (like groundwater recharge) and financing improved forestry management (like the Water Finance Infrastructure Authority of Arizona). Additionally, in Arizona, the Verde River Exchange Program creates a Water Offset Credit program, allowing water consumers to receive saleable credits for reduced water consumption, which can include improved forestry management. This program has the potential to create incentives for improved forestry management in the Verde River basin. But it also creates legal problems around water rights. If water users concede that pumping a well impacts stream flow, then water rights may be subject to court adjudication. Additionally, if forestry management results in increased stream flows, it is not clear that those investing in forestry management will receive rights to the increased stream flow rather than the presumably less valuable offset credits. Reforms will be necessary to encourage improved distinction between developed water and salvaged water. This may require examining how FONAPA was implemented in Ecuador and how it might be adapted for implementation in Arizona.
While the Paute and Verde basins have different hydrologic, geologic, cultural, and legal contexts, both have challenges associated with the nexus of water management and forestry management, and are pursuing market-based approaches to address those challenges. Each approach has lessons for the other on legal reforms necessary to facilitate water fund partnership projects to improve forestry management, water supply, and water quality.
Sub-national jurisdictions are undertaking law reform to remedy the historic inflexibility in water law that attempts to provide security in water use entitltments while inadequately addressing environmental flows. These reforms respond to the reality of increasing hydrological variability in many watersheds where the volume of water available for consumption at the times of highest demand is decreasing and minimum environmental flows are a precursor to healthy ecological systems. Adaptive management is a foundational ecological and ecosystem-based management principle. Scholars and professionals from myriad disciplines are calling for legal and policy structures that allow adaptive environmental management regimes based on evolving watershed conditions. Adaptive management in a water context requires integrated decision-making that incorporates real-time scientific data into decisions about land use and decision about surface and groundwater, provision for minimum environmental flows, and the ability to alter water users' entitlements when a water resource is either over-allocated or changing flow regimes result in insufficient water. The purpose of the paper is to evaluate how well recent water law reforms in Canada are incorporating legal and management tools for adaptive management and to address fixed entilements to use water in favour of more responsivle and watershed-specific management approaches. these law reforms necessarily require the inclusion of and attention to new scientific information about hydrological health, in particular in defining environmental flows. While these law reforms are providing some flexibility in accommodating environmental flows, they decrease certainty for water users as hydrological systems change. It is also not clear that there is an adequate science for the decision-making processes to meaningfully adapt management in a watershed context. The relative success in water law reform in Canada in allowing for adaptation and healthy hydrological systems, although incomplete, is instructive for other jurisdictions as they seek to align their water laws with principles of adaptive management.
This presentation studies the adaptive, ecosystem based governance framework of the European Water Framework Directive (WFD, 2000/60/EC), and the problems of implementing the directive on the national level, especially in Finland. It draws some conclusions for the further facilitation of adaptive water management in Europe and other areas.
Over the past 50 years, humans have changed freshwater ecosystems more rapidly and extensively than in any comparable period. There is a growing need for natural resources such as water and food as well as ecosystem services such as hydro-power, wastewater treatment, climate regulation, and aesthetic enjoyment provided by the freshwater environments. Simultaneously and due to ever-growing water uses, there is an increased need to protect, preserve, and improve freshwater resources.
Governing freshwater resources by traditional forms of legal regulation, which highlight the importance of providing certainty and predictability in the form of water rights, is becoming increasingly challenging. In order to facilitate changing societal preferences regarding the use and protection of water resources and to coordinate responses to complex changes in ecosystems driven by climate change, there is an increasing need for adaptive water management which facilitates learning, and experimentation in an iterative and strategic, science-based process.
On the European level, the Water Framework Directive sets an obligation to the Member States to implement an iterative River Basin Management Planning process which facilitates increased understanding of the environmental condition of water bodies and groundwater as well as drivers affecting their condition. In Finland, however, one of the primary problems for the effective implementation of the WFD has been that the Directive does not set clear obligations regarding the integration of River Basin Management Planning to other water management instruments, such as licensing water uses. An adaptive planning process has been erected on top of existing, mal-adaptive management frameworks and instruments, eroding considerably the adaptive capacity of water management on the domestic level.
The research is based on a doctrinal study of law (de lege lata) and methods of governance and policy research (de lege ferenda).
First, it is crucial to understand that adaptive water management requires a legal system that includes a binding obligation to a river basin-level, iterative planning, which facilitates constant monitoring of the condition of waters and drivers contributing to their condition. Second, the planning system must be integrated with other water management instruments, such as licensing of water uses and pollution-control, as well as land-use planning in order to safeguard that the pressures and drivers recognised in the planning process hold legal significance in grass roots level water management practices.
Effective implementation of adaptive water management on the European and national levels necessitates further work on the design of management instruments. Uniform application of the WFD requires that river basin planning is integrated more closely to licensing and land-use planning systems in order to prevent the watering down of the noble goals of the directive.
Key trends in contemporary water resources legislation were analyzed in a prior essay by this author, published in 37/6 Water International (2012). They are: the steady attraction of water resources in the public domain of the state, and in the scope of governmental allocation authority; checking the government authority to allocate and re-allocate water resources, and improving the quality of decision-making, through a panoply of regulatory mechanisms; controlled trading of water rights; the rising profile of the environment as a competitor in the allocation and re-allocation of available water resources (also known as the "greening" of water laws); charging for the use of water resources, and acknowledging the economic value of water through the "user pays" and the "polluter pays" principles; capturing the land-water connection at critical points of regulatory intersection; the participation of water users; and the interface between statutory and customary water rights. These trends will be revisited, and emerging new trends will be illustrated, through the analysis of a significant amount of legislation enacted by a wide variety of countries in the past 4/5 years. The old and new trends confirm that the water law agenda ahead will be informed and inspired by the never-ending quest for (a) security of water rights tenure in the face of isk and uncertainty; (b) efficiency of allocation of an ever scarcer resource, in the face of equity demands; and (c) environmental sustainability of resource allocations, in the face of the claims of development. The science-based policy debate plays a paramount role in shaping the legal systems' responses to these fundamental issues regarding the future of water resiources management. Narrowing the gap between water resources management regulation/administration and land use regulation/administration; facilitating the coexistence of customary and statutory water allocation systems and rights; and easing access to justice in relation to disputes over water, make up the balance of the foreseeable domestic water law agenda for the years to come.