36216 LAW, JUSTICE, AND DEVELOPMENT SERIES Public Disclosure Authorized REGULATORY FRAMEWORKS FOR Public Disclosure Authorized WATER RESOURCES MANAGEMENT Public Disclosure Authorized A Comparative Study Salman M. A. Salman and Daniel D. Bradlow Public Disclosure Authorized Other Titles in the Law, Justice, and Development Series Legal Aspects of Financial Services Regulation and the Concept of a Unified Regulator (2006) by Kenneth Kaoma Mwenda The Transit Regime for Landlocked States: International Law and Development Perspectives (2006) by Kishor Uprety The Human Right to Water: Legal and Policy Dimensions (2004) by Salman M. A. Salman and Siobhán McInerney-Lankford Conflict and Cooperation on South Asia’s International Rivers: A Legal Perspective (2002) by Salman M. A. Salman and Kishor Uprety Regulatory Frameworks for Dam Safety: A Comparative Study (2002) by Daniel D. Bradlow, Alessandro Palmieri and Salman M. A. Salman Available in French (2003). Also available in Chinese (2002) through the World Bank Office in Beijing, and in Russian (2003) through VES MIR Publishers, Moscow The Legal and Regulatory Framework for Environmental Impact Assessments: A Study of Selected Countries in Sub-Saharan Africa (2002) by Mohammed A. Bekhechi and Jean-Roger Mercier Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and 1995 UN Fish Stocks Agreement (2001) by William Edeson, David Freestone and Elly Gudmundsdottir Also available in French (2004) Regulatory Frameworks for Water Resources Management A Comparative Study Law, Justice, and Development The Law, Justice, and Development series is offered by the Legal Vice Presidency of the World Bank to provide insights into aspects of law and justice that are rel- evant to the development process. Works in the series present new legal and judicial reform activities related to the World Bank’s work, as well as analyses of domestic and international law. The series is intended to be accessible to a broad audience as well as to legal practitioners. Series Editor: Salman M. A. Salman Editorial Board: Dominique Bichara, Hassane Cisse, Alberto Ninio, Kishor Uprety Regulatory Frameworks for Water Resources Management A Comparative Study Salman M. A. Salman Daniel D. Bradlow THE WORLD BANK Washington, D.C. © 2006 The International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org E-mail: [email protected] All rights reserved 1 2 3 4 :: 09 08 07 06 This volume is a product of the staff of the International Bank for Reconstruction and Development / The World Bank. The findings, interpretations, and conclusions expressed in this volume do not necessarily reflect the views of the Executive Directors of The World Bank or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. 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All other queries on rights and licenses, including subsidiary rights, should be addressed to the Office of the Publisher, The World Bank, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2422; e-mail: [email protected]. ISBN-10: 0-8213-6519-3 eISBN: 0-8213-6520-7 ISBN-13: 978-0-8213-6519-9 DOI: 10.1596/978-0-8213-6519-9 Library of Congress Cataloging-in-Publication Data Salman, Salman M. A., 1948–. Regulatory frameworks for water resources management : a comparative study / Salman M.A. Salman, Daniel D. Bradlow. p. cm — (Law, justice, and development) Includes bibliographical references and index. ISBN-13: 978-0-8213-6519-9 ISBN-10: 0-8213-6519-3 1. Water resources development—Law and Legislation. I. Bradlow, Daniel D. II. Title. III. Series. K3498.S25 2006 346.04'69115—dc22 2005058019 Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such. Preamble to the European Union Water Framework Directive, 2000 Contents Foreword ix Abstract xi Acknowledgements xiii Acronyms and Abbreviations xv Chapter 1 Introduction 1 Chapter 2 Country Study of Regulatory Frameworks for Water Resources Management 13 2.1 Armenia 14 2.2 Brazil 24 2.3 Cameroon 32 2.4 China 36 2.5 Costa Rica 45 2.6 European Union (EU) 49 2.7 France 56 2.8 Germany 61 2.9 Republic of Kazakhstan 68 2.10 Mexico 76 2.11 Morocco 85 2.12 Kingdom of Nepal 93 2.13 Senegal 97 2.14 South Africa 100 2.15 Vietnam 112 2.16 Yemen 119 Chapter 3 Comparative Analysis of the Regulatory Frameworks for Water Resources Management 127 3.1 Statutory Framework 127 3.2 Underlying Principles and Priorities 128 3.3 Regulation of Water Uses 130 3.4 Protection of Water 132 vii viii Contents 3.5 Regulation of Water Infrastructure 133 3.6 Institutional Arrangements 134 3.7 Financial Arrangements 136 3.8 Enforcement of Regulations and Dispute Resolution 138 Chapter 4 Regulatory Frameworks for Water Resources Management: Essential Elements and Emerging Trends 141 4.1 Process for Preparing Water Legislation 141 4.2 Ownership of Water Resources 143 4.3 Underlying Principles and Priorities 145 4.4 Regulation of Water Uses 147 4.5 Protection of Water Resources 149 4.6 Regulation of Water Infrastructure 151 4.7 Institutional Arrangements 152 4.8 Financial Arrangements 155 4.9 Private Sector Participation 157 4.10 The Right to Water 158 4.11 Enforcement of the Regulations 160 4.12 Dispute Settlement 161 Chapter 5 Conclusion 163 Appendix I The Dublin Statement on Water and Sustainable Development 169 Appendix II The World Bank Operational Policy (OP) 4.07—Water Resources Management 175 Bibliography 177 Index 189 Foreword Water is a scarce and finite resource with no substitute, and upon which the very existence of life on earth depends. The challenges facing water resources are daunting. During the last century, the population of the world has more than tripled, from 1.6 billion to over 6 billion, while water resources have remained constant. Urbanization, industrialization, and environmental degradation are compounding the challenges. The United Nations World Water Development Report, 2003, presented a gloomy picture: About 2 billion people in over 40 countries are affected by water shortages, more than 1 billion people lack suffi- cient and safe drinking water, and 2.4 billion have no provisions for sanitation. The Millennium Development Goals aim, inter alia, at reducing by half, by 2015, the proportion of people without sustainable access to safe drinking water and sanitation. Although progress thus far is not encouraging, it is hoped that necessary actions will be taken to achieve this goal during the remaining period. Such actions include financial, institutional, and legal measures. Indeed, without the appropriate legal framework, the ability of the state to reg- ulate, control, and allocate its water resources is hampered; its role in ensuring their efficient and proper use is hindered; and its right to protect those resources is challenged. The declarations and resolutions of the many different forums and conferences that have addressed the challenges of the water sector urged the states, inter alia, to adopt water legislation. They call for water legislation that lays down clear and comprehensive rules but that is sufficiently flexible to accommodate future chal- lenges and changes in priorities and perspectives. Similarly, the World Bank Operational Policy on Water Resources Management underscores the importance of water legislation and confirms the Bank’s readiness to assist its borrowers in establishing a strong legal and regulatory framework for water resources management. This study of the regulatory frameworks for water resources management examines water legislation in sixteen jurisdictions and highlights, in a compara- tive manner, the key elements needed for an effective regulatory framework. The Legal Vice Presidency of the World Bank is pleased to offer this publication and ix x Foreword hopes it will serve as a useful guide for policy makers and technical experts, international and civil society organizations, and all those concerned with water resources management, development, and protection. Scott B. White Acting Vice President and General Counsel The World Bank February 2006 Abstract This study deals with the regulatory frameworks for water resources manage- ment. Chapter 1 traces the relevance and importance assigned to water legislation by the different international conferences and forums, including the Mar del Plata, Dublin, and Rio, and the guidance provided by those conferences for preparing such legislation. Chapter 2 surveys the regulatory frameworks for water resources management in sixteen jurisdictions, based on certain key ele- ments. Those jurisdictions were selected based on the availability and accessibil- ity of a water law, as well as on the need to represent different regions and legal systems of the world. Chapter 3 presents a comparative analysis of these regula- tory frameworks based on the same elements. The analysis examines the main similarities and differences in the approaches adopted by the jurisdictions selected. Chapter 4 highlights essential elements that need to be addressed in any regulatory framework for water resources management and identifies emerging trends in water legislation.