Hendry, S. 2015. Frameworks for water law reform. International Hydrology Series, Cambridge University Press, Cambridge, ISBN 9780511998065, 148 p., $116.
Vice-Chair, International Association for Water Law (AIDA) email@example.com
To cite this Review: Nani, M. 2020. Review of "Frameworks for water law reform". Cambridge University Prese, 2015, by S. Hendry, Water Alternatives, http://www.water-alternatives.org/index.php/boh/item/113-law
The author of this book, Dr Sarah Hendry, rightly observes that lawyers are often unwelcome to participate in the discussion of water management issues, except when, reluctantly, it is recognized that they ‘must be brought in’. Do all lawyers think that water is just something coming out of a tap? As many of her water law colleagues, Dr Hendry answers this question in the negative, by highlighting the key role that the law in general, and water law in particular, plays in the governance of water resources.
Because of population growth, increasing urbanization, environmental degradation and climate change, governments around the world are rethinking their water management and environmental policies, and are instituting substantial reforms to their water-sector legislation and institutions. These reforms may require the modification of existing rights, or the introduction of new duties, or the limitation of individual actions, all of which might generate conflicts. Thus, inputs of water lawyers become essential to the understanding of the implications of any legal reform in the water sector. Since water governance, water sciences and the law are closely related, these professionals have to be brought in, and not only if and when conflicts materialize.
The book contains a comprehensive and detailed comparative analysis of water legislation in four selected jurisdictions, namely England, Scotland, South Africa and the Australian state of Queensland, the latter also with reference to the Australian Commonwealth. All have recently undertaken reforms in the water sector, or are in the process of doing so; this was the main reason for the selection. Dr Hendry identifies the drivers for these reforms, as well as successes and failures in their implementation. She further highlights similarities and differences in the approaches taken, reminding the reader that the reforms introduced in England and Scotland were due to the necessity to implement the EU Water Framework Directive (WFD), while actions taken in South Africa and Queensland were triggered by other considerations. All reforms, however, present common features. Emphasis is placed throughout the book on the fact that, due to continuing environment degradation and climate change, further actions are being taken in the four jurisdictions, leading to the conclusion that legal reforms are part of an ongoing process and there is always room for incremental improvements.
Chapter 1 introduces the subject, and then focuses on the policy context that forms the basis of every legal reform in the water sector. After having illustrated recent policy developments worldwide, it provides information on geography, population, hydrology and water demands for the jurisdictions under review, thus setting the stage for a discussion of law developments for each jurisdiction within four core areas of water law. The chapters that follow are devoted to these core areas and relate to: integrated water resources management (IWRM) and river basin planning (Chapter 2); water rights and allocation (Chapter 3); water pollution and water quality (Chapter 4); and, the governance and regulation of water services (Chapter 5).
Chapter 2, on IWRM, examines river basin planning instruments and their operationalization in the four jurisdictions through the lenses of the law, including institutional mechanisms and modalities for stakeholder participation. It shows that the holistic approach underlying IWRM, which was introduced successfully in all four jurisdictions, might be hard to implement elsewhere because of associated requirements. This is now a well-recognized finding; literature on the subject indicates that in several countries IWRM is constrained inter alia by weak capacity and the absence of effective systems for resource assessment. Hence an evolutionary approach is needed.
Legal mechanisms for water allocation and water rights, which are the subject of Chapter 3, are key to success in water policy implementation and are a core element of any water law reform. The chapter advocates effective and transparent water right administration systems established through primary legislation, in which water entitlements are clearly defined, secure but limited in time, subject to periodic review and, if necessary, to limitation or reallocation on solid legal grounds. Because of the possible constitutional implications of dispossession, the law should afford protection, under certain conditions, to pre-existing and customary water rights.
Chapter 4, on water pollution and water quality, places emphasis on the interface between water law and environmental law, water quality and quantity, and water management and ecosystem protection, all in the light of pressures produced by climate change, population growth and urbanization. It concludes that the legal frameworks reviewed are broadly comparable; differences relate to the degree of integration of water quality and quantity considerations into the permit system, the use of quality guidelines rather than mandatory standards, the degree of implementation of standards and justice mechanisms for environmental issues, among other things. Recognizing that water quality protection might be difficult to achieve overnight given the financial and human resources involved, Dr Hendry hints at the desirability of a phased approach applying in particular to ecological classification and the setting and implementation of water quality standards.
Chapter 5 reviews in detail the legal framework for water services in the four jurisdictions. Dr Hendry observes that these services are in the public sector in all cases (albeit with some private sector participation) but England, where they are provided by ten private undertakers. She describes the reforms introduced over time, their history and the difficulties faced in their implementation. Differences in the approaches taken concern inter alia the structure of service providers, the degree of integration, regulation mechanisms and the constitutional recognition of the right to water (in South Africa only). The conclusion is that there is no golden rule for the organization of water services; what is important is to establish a clear policy, legal and institutional framework addressing the needs of the poor and providing for environmental protection, the accountability of service providers and consumer protection. Cost recovery is, of course, also an important issue, albeit critical since it implies considerations of a socio-economic and political nature.
Chapter 6 is about findings and recommendations for possible water law reform based on practices in the four jurisdictions. While findings relating to the implications of IWRM for water resources management and ecosystem protection are not really new, Dr Hendry tries to answer a few questions that still puzzle policy makers around the world. Should one law cover all aspects of water resources management, or should there be separate legislation for water resources and water services? What happens when water quantity aspects and environmental issues are regulated through separate enactments? What should be the content of primary water management legislation? Is there a best model for the organization of water services? As to the first question, Dr Hendry suggests that because reforms in the structure of water services involve commercial and corporate law, they should not be treated as part of overall water sector reforms. However, because service providers receive bulk water, they should be considered as primary water users under general water management legislation, therefore subject to permit requirements. To the second question, she answers that when environmental aspects are covered under separate legal enactments strong coordination is required. The answer to the third question is that primary water management legislation should cover water in all its forms, provide for state water ownership or trusteeship and set out basic principles, rights and duties in respect of the assessment, planning, allocation (and reallocation) of water resources, the prevention and control of pollution and the protection of ecosystems. It should provide for clearly defined water rights and make sure that allocation decisions are not challenged on constitutional grounds; it should recognize pre-existing and customary water rights, and protect small abstractions to meet basic human needs on grounds of equity. The principles underlying water use permits should also apply to wastewater discharge permits, but when there is no provision for water quantity and quality integration into the permit system the legislation should set out mechanisms for referral between authorities – the water to the environmental authority or vice-versa - in the relevant application procedures. The legislation should also promote an evolutionary approach to quality standards, by allowing the number of parameters to be increased if circumstances so warrant. As to the choice of organization for water services, there is no best answer, since political considerations come to the fore. The fact remains that there is a duty to supply, whether or not the right to water is recognized by the constitution.
The four core areas examined in this book are de facto addressed in the legislation of almost all countries, although the situation of each may warrant a specific approach. In spite of the abundance of literature on the subject, the book is a useful source of information for academic researchers, graduate students, policy-makers and, in particular, professionals engaged in legal reforms in the water sector within their respective jurisdictions. Because it focuses on concrete examples and does not seek to propose a model for reform, thus implicitly warning against the risks associated with the use of copy-and-paste techniques, it offers the elements needed by these professionals to select options suited to the circumstances of each case. The analysis conducted in the book is clear, thorough and comprehensive; the recommendations are summarized in a table format easily accessible to the reader. The analysis of regulatory provisions on water services conducted in Chapter 5 is particularly compelling, Dr Hendry being the author of previous publications on this specific subject, and an expert on water services – a success story - in Scotland.