|FAO Irrigation and Drainage Paper 52 Reforming water resources policy A guide to methods, processes and practices (1995)|
|Chapter 4 - Methods and processes|
|Legal and institutional reforms|
An increasing number of private sector groups, including water user associations and other NGOs, are taking over some public sector irrigation responsibilities. The inclusion of water users in irrigation planning, management and ownership is proving to be an effective method for increasing irrigation system efficiency in many cases. Studies throughout the world demonstrate that user participation in irrigation services improves access to information, reduces monitoring costs, establishes a sense of ownership of policy among farmers and increases transparency as well as accountability in decision making.
Water user associations are expected to increase in number and importance over the next decade as the stress on self-reliance increases. Already, governments are turning many aspects of public irrigation systems over to water user associations. Well-documented examples can be seen in Argentina, Colombia, Indonesia, Mexico, Nepal, the Philippines, Sri Lanka, and Tunisia. In Indonesia, for example, the government had transferred more than 400 irrigation systems, covering 34 000 ha, to water user associations by 1992. In the future, as farmer financing becomes more commonplace, user groups will become even more powerful.
BOX 6: CHECKLIST OF SELECTED LEGAL ISSUES AND ATTENDANT LEGISLATIVE REQUIREMENTS IN WATER POLICY REVIEW AND REFORM
1. Does the proposed policy comport with existing legislation governing and regulating the use, development and conservation of water resources and other related natural resources (e.g., land, forests and fish) and the environment? If not, what changes will be required, at which hierarchical level of lawmaking (i.e., constitutional, Act of Legislature, ministerial regulation)? In particular:
1.1 Does the proposed regulatory policy of water abstraction and use require a modification of the rights to use water held by individual or corporate members of the public? If so, to what extent and under what guarantees will such rights be made subject to change?
1.2 Does the proposed policy require a modification of the powers or scope of authority of the governmental or paragovernmental bodies responsible for water resources management and development, or for related functions (i.e., public health preservation, environmental protection, management of lands and forests, or conservation of wildlife)?
1.3 Does any proposed water charging policy require
· modification of legislation
conferring a non-economic status upon water?
2. Does the proposed policy require new legislation - as opposed to amending legislation already in existence - to support it and, if so, what will attendant substantive legislative drafting requirements be? In particular:
2.1 Does the proposed policy promote the privatization of water services and, if so, what legat mechanisms will need to be written into the required legislation to reconcile the profit motivation of privatized services with the interest of the general public in dependable, up-to-standard and affordable levels of services?
2.2 Does the proposed policy promote corporatizing public water resources management and development bodies and, if so, what legal mechanisms will need to be written into the required legislation to ensure public accountability of the new corporate entities?
2.3 Does the proposed policy promote the transferability of water through a market mechanism of water rights and, if so
· will water be transferable
separately from the land where it is used? and
NGOs can undertake a wide range of water-related functions, from developing projects for rural water supplies and minor irrigation to fostering water user associations for water management purposes. Some NGOs encourage farmers to try new technologies, for example the catchment protection and sprinkler irrigation techniques introduced by the Aga Khan Rural Support Programme in Gujarat, India.
Many NGOs stem from local initiatives and operate as independently funded and self-managed groups. These organizations bring fresh views, new ideas and participatory working methods to other areas of development policy and practice. Much of their success is attributed to their local knowledge as well as their interest in and experience of regional conditions. They have been particularity active in promoting the interests of poor and disadvantaged groups through articulate and forceful advocacy and service provision.
The local base of NGOs may allow them to reach vulnerable or remote groups which are exceptionally difficult to reach with conventionally conceived and managed public schemes. With their close local contacts and skills in group mobilization and cohesion, NGOs can provide the institutional leadership required to bring about socially acceptable solutions, and in some cases (e.g., the Philippines) serve as community organizations.
BOX 7: LEGAL. PREREQUISITES IN IRRIGATION MANAGEMENT
As pressures on water resources and public finances increase, legal and administrative systems need to respond to the new requirements. This process includes a number of legal and institutional issues.
Water rights security: a reliable quantity and flow of water of suitable quality, and protection from pollution, are basic requirements for irrigation development. The issue of legal security has been evolving from existing or potential water conflicts and is addressed through legal mechanisms for conflict resolution. Security of water rights is, however, also required for non-conflicting situations related to market transactions, such as the commercial transfer of water rights among users or when using water rights as collateral for bank credits. Water rights titles, through certain and clear legal instruments, we critical to prevent conflict and to stimulate market mechanisms for enhanced efficiency in water use.
Customary legal rules and practices need to be recognized in statutory law as they are significant, especially in the rural context, for regulating access to water and settlement of water conflicts. The traditional informal approaches are important, since formal resolution of conflicts through litigation in courts of law is often risky, expensive and inconsistent with local culture.
Water allocation to different users is normally effected through water licences, which should allow an adequate level of flexibility while preventing or minimizing water conflicts. When previously-licensed water is re-allocated to higher-valued uses (e.g., shifted from agricultural to industrial water uses), legal mechanisms that regulate re-allocation and define the compensation to displaced licence holders are required.
Transferability of water use rights is particularly important for irrigation, so as to encourage investment in water-saving practices and permit alternative, higher-value uses of the saved water. However, to curb speculation in water rights, especially when water is scarce, irrigation water is commonly considered to be appurtenant to the irrigated land. Purely market-driven transfer systems are rare, and actual practices, to be consistent with public policy objectives and water plans, are often limited to transfers under the direct control of government water administrations.
Establishment of security of land tenure and of ownership rights, with land reform and redistribution in response to objectives of social justice, offer the opportunity to replace forms of tenure such as tenancy and sharecropping, which inhibit development and hinder the efficient and sustainable use of irrigated land. To support the transition from traditional to modem agriculture, legal mechanisms are required for a gradual transition from customary rights into modern and tradable titles.
Cost recovery is often restricted by legal and institutional obstacles such as farmers' exemption to levies, charges and service fees. inadequate authority to collect and enforce the charges, and lack of budgetary and institutional mechanisms to keep collected revenues in the irrigation subsector. Within the same objective of retrenchment of government's responsibilities, proper legal authority and enabling institutions should be established to transfer government responsibility to the users. The extent of the transfer of physical irrigation works to the users or their retention by the government, and the terms and the conditions for their use. need to be regulated. Users' groups need to be legally established and to be tailored to the scope of the functions of the users' associations.
Control of water pollution from irrigation raises legal issues on how much legitimate property rights of cultivators can be restricted, in relation to land under cultivation and agricultural practices and whether and what kind of compensation should be given.