Water resources law

Water resources law (in some jurisdictions, shortened to "water law") is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is older than and distinct from laws governing water quality.

Waters subject to regulation

Water is ubiquitous and does not respect political boundaries. Water resources laws may apply to any portion of the hydrosphere over which claims may be made to appropriate or maintain the water to serve some purpose. Such waters include, but are not limited to:

History

The history of people's relation to water illustrates varied approaches to the management of water resources. "Lipit Ishtar and Ur Nammu both contain water provisions, pre-date Hammurabi by at least 250 years, and clearly provide the normative underpinnings on which the Hammurabi Code was constructed." The Code of Hammurabi was one of the earliest written laws to deal with water issues, and this Code included the administration of water use. The Code was developed about 3,800 years ago by King Hammurabi of Babylonia.[1]

Difficulties of water rights

Water has unique features that make it difficult to regulate using laws designed mainly for land. Water is mobile, its supply varies by year and season as well as location, and it can be used simultaneously by many users. As with property (land) law, water rights can be described as a "bundle of sticks" containing multiple, separable activities that can have varying levels of regulation. For instance, some uses of water divert it from its natural course but return most or all of it (e.g. hydroelectric plants), while others consume much of what they take (ice, agriculture), and still others use water without diverting it at all (e.g. boating). Each type of activity has its own needs and can in theory be regulated separately. There are several types of conflict likely to arise: absolute shortages; shortages in a particular time or place; diversions of water that reduce the flow available to others; pollutants or other changes (such as temperature or turbidity) that render water unfit for others' use; and the need to maintain "in-stream flows" of water to protect the natural ecosystem.

One theory of history, put forward in Karl August Wittfogel's book Oriental Despotism: A Comparative Study of Total Power, holds that many empires were organized around a central authority that controlled a population through monopolizing the water supply. Such a hydraulic empire creates the potential for despotism, and serves as a cautionary tale for designing water regulations.

Water law involves controversy in some parts of the world where a growing population faces increasing competition over a limited natural supply. Disputes over rivers, lakes and underground aquifers cross national borders.[2] Although water law is still regulated mainly by individual countries, there are international sets of proposed rules such as the Helsinki Rules on the Uses of the Waters of International Rivers and the Hague Declaration on Water Security in the 21st Century.

Long-term issues in water law include the possible effects of global warming on rainfall patterns and evaporation; the availability and cost of desalination technology; the control of pollution, and the growth of aquaculture.

Legal models

The legal right to use a designated water supply is known as a water right. There are two major models used for water rights. The first is riparian rights, where the owner of the adjacent land has the right to the water in the stream. The other major model is the prior appropriations model, the first party to make use of a water supply has the first rights to it, regardless of whether the property is near the water source. Riparian systems are generally more common in areas where water is plentiful, while appropriations systems are more common in dry climates. As water resource law is complex, many areas have some combination of the two approaches.

Water law by country

International law

The right to water to satisfy basic human needs for personal and domestic uses has been protected under international human rights law. When incorporated in national legal frameworks, this right is articulated to other water rights within the broader body of water law. The human right to water has been recognized in international law through a wide range of international documents, including international human rights treaties, declarations and other standards.

The human right to water places the main responsibilities upon governments to ensure that people can enjoy "sufficient, safe, accessible and affordable water, without discrimination". Most especially, governments are expected to take reasonable steps to avoid a contaminated water supply and to ensure there are no water access distinctions amongst citizens. Today all States have at least ratified one human rights convention which explicitly or implicitly recognizes the right, and they all have signed at least one political declaration recognizing this right.

Canada

Under the Constitution Act, 1867, jurisdiction over waterways is divided between the federal and provincial governments. Federal jurisdiction is derived from the powers to regulate navigation and shipping, fisheries, and the governing of the northern territories, which has resulted in the passage of:

Provincial jurisdiction is derived from the powers over property and civil rights, matters of a local and private nature, and management of Crown lands. In Ontario, Quebec and other provinces, the beds of all navigable waters are vested in the Crown, in contrast to English law.[3] All provincial governments also govern water quality through laws on environmental protection and drinking water, such as the Clean Water Act in Ontario.

Australia

Water law in Australia varies with each state.

Tasmania

A newly formed Tasmanian Water Corporation has compulsorily acquired all drinking water supply infrastructure without payment and does not have direct accountability [4]

Water law in the United States

In the United States there are complex legal systems for allocating water rights that vary by region. These varying systems exist for both historical and geographic reasons. Water law encompasses a broad array of subjects or categories designed to provide a framework to resolve disputes and policy issues relating to water:

  • Public waters, including tidal waters and navigable waterways.
  • Other surface waters—generally water that flows across non-public land from rain, floodwaters, and snowmelt before those waters reach public watercourses.
  • Groundwater, sometimes called subterranean, percolating, or underground water
  • Public regulation of waters, including flood control, environmental regulation—state and federal, public health regulation and regulation of fisheries
  • Related to all of the above is interplay of public and private rights in water, which draws on aspects of eminent domain law and the federal commerce clause powers
  • Water project law: the highly developed law regarding the formation, operation, and finance of public and quasi-public entities which operate local public works of flood control, navigation control, irrigation, and avoidance of environmental degradation
  • Treaty Rights of Native Americans

The law governing these topics comes from all layers of law. Some derives from common law principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change. For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved. Some derives from state statutory law. Some derives from the original public grants of land to the States and from the documents of their origination. Some derives from state, federal and local regulation of waters through zoning, public health and other regulation. Non-federally recognized Indian tribes do not have water rights.

Water law in the European Union

For countries within the European Union, water-related directives are important for water resource management and environmental and water quality standards. Key directives include the Urban Waste Water Directive 1992 [5] (requiring most towns and cities to treat their wastewater to specified standards), and the Water Framework Directive 2000/60/EC, which requires water resource plans based on river basins, including public participation based on Aarhus Convention principles. See Watertime — the international context, Section 2.

See also

References

  1. ^ Jones, P. Andrew, and Cech, Tom. Colorado Water Law for Non-Lawyers. Boulder, CO, USA: University Press of Colorado, 2009.
  2. ^ Thompson, Olivia N., "Binational Water Management: Perspectives of Local Texas Officials in the U.S.-Mexico Border Region" (2009). Applied Research Projects. Paper 313. http://ecommons.txstate.edu/arp/313
  3. ^ See The Beds of Navigable Waters Act in Ontario and Civil Code of Quebec, s. 919, in Quebec
  4. ^ Flora Fox Regional News, Kingborough, Hobart Southern Tasmania http://florafox.tumblr.com/post/3418412236/water-sewer-governance-tasmania
  5. ^ "Water pollution - Environment - European Commission". ec.europa.eu.
  • Hildering, A. (2004), International Law, Sustainable Development and Water Management, Eburon Academic Publishers, Delft, The Netherlands, 2004 [1]
  • International Law Association Water Resources Committee (2004), Final Report presented at the Association's 2004 Conference in Berlin [2]
  • UNEP (2002), Vital Water Graphics — An Overview of the State of the World's Fresh and Marine Waters. UNEP, Nairobi, Kenya. [3]
  • Sax, J. L., et al.. Legal Control of Water Resources: Cases and Materials (4th edition). Thomson/West (2006), ISBN 978-0-314-16314-1.

Further reading

Anil B. Divan

Anil B. Divan (born 15 May 1930 - 20 March 2017) was a senior advocate in India. He has been described as an eminent constitutional expert.Anil B. Divan was born on 15 May 1930. He died 20 March 2017. He was president of Law Asia from 1991 to 1993. From February 2009 he was Associate President of the Bar Association of India.

He argued in the Supreme Court of India on a "pro bono" basis in many Public Interest Litigations (PILs), some involving high-level corruption, as an "Amicus Curiae".

In 2004 he was a member of the committee on Water Resources Law of the International Law Association.

He has been appointed by the government to help resolve Cauvery Water Disputes.In the late 1980s, Divan was one of the founders of the Centre for Public Interest Litigation, a Non-governmental organization that conducts litigation on matters of public interest.

The first president was Justice V. M. Tarkunde, who was also the founder of the People's Union for Civil Liberties.

Other founder members were senior advocates including Fali Sam Nariman, Shanti Bhushan, Rajinder Sachar and Colin Gonsalves.In February 2005, Prashant Bhushan and Anil B. Divan were counsel for the Centre for Public Interest Litigation (CPIL) seeking quashing of the CVC Act, 2003, which requires the CBI to obtain permission from the Union government before registering corruption cases against senior bureaucrats. Bhushan argued that the act violated the basic rights of citizens and was counter to the rule of law. The Supreme Court referred the question to a constitution bench of five judges.

Divan was a member of the Committee on Judicial Accountability.

Commenting on the Judges Enquiry Bill, 2006, he said "The aforementioned new bill is worse than the old Judges Inquiry Act and it needs to be scrapped in toto. This new bill is nothing but a sham".

Divan's son Shyam Divan is also a lawyer practising in the Supreme Court. His daughter-in-law, Madhavi Goradia Divan is an author of books on law and also a practising lawyer.

Ecotax

An Ecotax (short for ecological taxation) is a tax levied on activities which are considered to be harmful to the environment and is intended to promote environmentally friendly activities via economic incentives. Such a policy can complement or avert the need for regulatory (command and control) approaches. Often, an ecotax policy proposal may attempt to maintain overall tax revenue by proportionately reducing other taxes (e.g. taxes on human labor and renewable resources); such proposals are known as a green tax shift towards ecological taxation. Ecotaxes address the failure of free markets to consider environmental impacts.Ecotaxes are examples of Pigouvian taxes, which are taxes that attempt to make the private parties involved feel the social burden of their actions. An example might be philosopher Thomas Pogge's proposed Global Resources Dividend.

Environmental cleanup law

Environmental cleanup laws govern the removal of pollution or contaminants from environmental media such as soil, sediment, surface water, or ground water. Unlike pollution control laws, cleanup laws are designed to respond after-the-fact to environmental contamination, and consequently must often define not only the necessary response actions, but also the parties who may be responsible for undertaking (or paying for) such actions. Regulatory requirements may include rules for emergency response, liability allocation, site assessment, remedial investigation, feasibility studies, remedial action, post-remedial monitoring, and site reuse.

Different laws may govern the cleanup or remediation of varying environmental media. Spill response or cleanup requirements may be enacted as stand-alone laws, or as parts of larger laws focused on a specific environmental medium or pollutant.

Environmental law

Environmental law, also known as environmental and natural resources law, is a collective address environmental pollution. A related but distinct set of regulatory regimes, now strongly influenced by environmental legal principles, focus on the management of specific natural resources, such as forests, minerals, or fisheries. Other areas, such as environmental impact assessment, may not fit neatly into either category, but are nonetheless important components of environmental law.

Fisheries law

Fisheries law is an emerging and specialized area of law. Fisheries law is the study and analysis of different fisheries management approaches such as catch shares e.g. Individual Transferable Quotas; TURFs; and others. The study of fisheries law is important in order to craft policy guidelines that maximize sustainability and legal enforcement. This specific legal area is rarely taught at law schools around the world, which leaves a vacuum of advocacy and research. Fisheries law also takes into account international treaties and industry norms in order to analyze fisheries management regulations. In addition, fisheries law includes access to justice for small-scale fisheries and coastal and aboriginal communities and labor issues such as child labor laws, employment law, and family law.Another important area of research covered in fisheries law is seafood safety. Each country, or region, around the world has a varying degree of seafood safety standards and regulations. These regulations can contain a large diversity of fisheries management schemes including quota or catch share systems. It is important to study seafood safety regulations around the world in order to craft policy guidelines from countries who have implemented effective schemes. Also, this body of research can identify areas of improvement for countries who have not yet been able to master efficient and effective seafood safety regulations.

Fisheries law also includes the study of aquaculture laws and regulations. Aquaculture, also known as aquafarming, is the farming of aquatic organisms, such as fish and aquatic plants. This body of research also encompasses animal feed regulations and requirements. It is important to regulate what feed is consumed by fish in order to prevent risks to human health and safety.

Fishing industry in Laos

The fishing industry in the land-locked country of Laos is a major source of sustenance and food security to its people dwelling near rivers, reservoirs and ponds. Apart from wild capture fisheries, which is a major component of fish production, aquaculture and stocking are significant developments in the country. Historically, fishing activity was recorded in writings on the gate and walls of the Wat Xieng Thong in Luang Prabang dated 1560. For many Laotians, freshwater fish are the principal source of protein. The percentage of people involved in regular fishing activity is very small, only near major rivers or reservoirs, as for most of the fishers it is a part-time activity.

Forestry law

Forestry laws govern activities in designated forest lands, most commonly with respect to forest management and timber harvesting. Ancillary laws may regulate forest land acquisition and prescribed burn practices. Forest management laws generally adopt management policies, such as multiple use and sustained yield, by which public forest resources are to be managed. Governmental agencies are generally responsible for planning and implementing forestry laws on public forest lands, and may be involved in forest inventory, planning, and conservation, and oversight of timber sales. Broader initiatives may seek to slow or reverse deforestation.

Game law

Game laws are statutes which regulate the right to pursue and take or kill certain kinds of fish and wild animal (game). Their scope can include the following: restricting the days to harvest fish or game, restricting the number of animals per person, restricting species harvested, and limiting weapons and fishing gear used. Hunters, fishermen and lawmakers generally agree that the purposes of such laws is to balance the needs for preservation and harvest and to manage both environment and populations of fish and game. Game laws can provide a legal structure to collect license fees and other money which is used to fund conservation efforts as well as to obtain harvest information used in wildlife management practice.

Mark White

Mark Wells White Jr. (March 17, 1940 – August 5, 2017) was an American politician and lawyer, who served as the 43rd Governor of Texas from 1983 to 1987. He also held office as Secretary of State of Texas (1973–77), and as Texas Attorney General (1979–83).

White was elected governor in the 1982 gubernatorial election, defeating the incumbent Bill Clements. A member of the Democratic Party, White sought to improve education, transportation, water resources, law enforcement, and taxes to lure new industry to Texas. He appointed the first Hispanic woman to serve as judge of a district court in Texas. In the 1986 gubernatorial election, White lost to former Republican Governor Clements, 52.7% to 46.0%.

Mining law

Mining law is the branch of law relating to the legal requirements affecting minerals and mining. Mining law covers several basic topics, including the ownership of the mineral resource and who can work them. Mining is also affected by various regulations regarding the health and safety of miners, as well as the environmental impact of mining.

National Green Tribunal Act

National Green Tribunal Act, 2010 is an Act of the Parliament of India which enables creation of a special tribunal to handle the expeditious disposal of the cases pertaining to environmental issues. It draws inspiration from the India's constitutional provision of Article 21, which assures the citizens of India the right to a healthy environment.

Polluter pays principle

In environmental law, the polluter pays principle is enacted to make the party responsible for producing pollution responsible for paying for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received in most Organisation for Economic Co-operation and Development (OECD) and European Union countries. It is a fundamental principle in US environmental law.

Public trust doctrine

The public trust doctrine is the principle that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership.

United States environmental law

United States environmental law concerns legal standards to protect human health and improve the natural environment of the United States. While subject to criticism at home and abroad on issues of protection, enforcement, and over-regulation, the country remains an important source of environmental legal expertise and experience.

Waste management law

Waste management laws govern the transport, treatment, storage, and disposal of all manner of waste, including municipal solid waste, hazardous waste, and nuclear waste, among many other types. Waste laws are generally designed to minimize or eliminate the uncontrolled dispersal of waste materials into the environment in a manner that may cause ecological or biological harm, and include laws designed to reduce the generation of waste and promote or mandate waste recycling. Regulatory efforts include identifying and categorizing waste types and mandating transport, treatment, storage, and disposal practices.

Water law in the United States

Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with:

Public regulation of waters, including flood control, environmental regulation—state and federal, public health regulation and regulation of fisheries

The interplay of public and private rights in water, which draws on aspects of eminent domain law and the federal commerce clause powers;

Water project law: the highly developed law regarding the formation, operation, and finance of public and quasi-public entities which operate local public works of flood control, navigation control, irrigation, and avoidance of environmental degradation; and

Treaty rights of Native Americans.The law governing these topics derives from all layers of US law. Some derives from common law principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change. For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved. Some derives from state statutory law. Some derives from the original public grants of land to the states and from the documents of their origination. Some derives from state, federal, and local regulation of waters through zoning, public health, and other regulation. (Federally recognized tribes may have water rights, but non-federally recognized Indian tribes generally do not.)

Water resource management

Water resource management is the activity of planning, developing, distributing and managing the optimum use of water resources. It is a sub-set of water cycle management.

The field of water resources management will have to continue to adapt to the current and future issues facing the allocation of water. With the growing uncertainties of global climate change and the long term impacts of management actions,the decision-making will be even more difficult. It is likely that ongoing climate change will lead to situations that have not been encountered. As a result, alternative management strategies are sought for in order to avoid setbacks in the allocation of water resources.

Ideally, water resource management planning has regard to all the competing demands for water and seeks to allocate water on an equitable basis to satisfy all uses and demands. As with other resource management, this is rarely possible in practice.

One of the biggest concerns for our water-based resources in the future is the sustainability of the current and even future water resource allocation. As water becomes more scarce, the importance of how it is managed grows vastly. Finding a balance between what is needed by humans and what is needed in the environment is an important step in the sustainability of water resources. Attempts to create sustainable freshwater systems have been seen on a national level in countries such as Australia, and such commitment to the environment could set a model for the rest of the world.

Water resources management in Peru

While Peru accounts for about four per cent of the world's annual renewable water resources, over 98% of its water is available east of the Andes, in the Amazon region. The coastal area of Peru, with most of economic activities and more than half of the population, receives only 1.8% of the national freshwater renewable water resources. Economic and population growth are taking an increasing toll on water resources quantity and quality, especially in the coastal area of Peru.

The government of Peru is currently undertaking a major transformation of its water resources management from a centralized approach focused on irrigation development in the coastal area to a river basin integrated water resources management for the entire country. The 2009 Water Resources Law (Ley de Recursos Hídricos) and the draft National Water Resources Management Strategy of 2004 (Estrategia Nacional para la Gestión de los Recursos Hídricos Continentales del Perú) contain the necessary elements for Integrated Water Resources Management as stated in international good practices namely, integration of sectoral policies, participation of stakeholders, decentralization of management to the river basin level and recognition of water as a social and economic good. Despite the new law, several key challenges remain, including limited institutional capacity, increasing water stress in the coastal region, deteriorating water quality, poor efficiency in the irrigation sector, as well as inadequate access to and poor quality of water supply and sanitation.

Wild law

The term ‘wild law’ was first coined by Cormac Cullinan, to refer to human laws that are consistent with Earth jurisprudence. A wild law is a law made by people to regulate human behaviour that privileges maintaining the integrity and functioning of the whole Earth community in the long term, over the interests of any species (including humans) at a particular time.

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