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Why Water Use Rights are Important The Role and Significance of Water Rights in the Management and Development of Water Resources

About the FAO Policy Learning Programme This programme aims at equipping high level officials from developing countries with cutting-edge knowledge and strengthening their capacity to base their decisions on sound consideration and analysis of policies and strategies both at home and in the context of strategic international developments. Related resources • See all material prepared for the FAO Policy Learning Programme • See the FAO Policy Learning Website: http://www.fao.org/tc/policy-learning/en/

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Why Water Use Rights are Important The Role and Significance of Water Rights in the Orderly Management and Development of Water Resources By

Stefano Burchi, Senior Legal Officer

Development Law Service, LEGN, FAO, Rome, Italy

of the

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS

About EASYPol The EASYPol home page is available at: www.fao.org/easypol This presentation belongs to a set of modules which are part of the EASYPol Resource package: FAO Policy Learning Programme : Specific policy issues: Natural resource management, Water EASYPol is a multilingual repository of freely downloadable resources for policy making in agriculture, rural development and food security. The resources are the results of research and field work by policy experts at FAO. The site is maintained by FAO’s Policy Assistance Support Service, Policy and Programme Development Support Division, FAO. © FAO January 2008

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Introduction Legislation for water resources management is an indispensable adjucnt to water sector policies in general A system of reliable and secure rights in water resoures (“Water rights”) is at the core of water resources policy and legislation, and is central to regulating access to an ever scarcer resource, and to minimizing conflict over same

This presentation will illustrate just what water rights are and how they function

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Objectives

After reading this module, you should know more about: the purpose, nature and contents of water rights how water rights are created how water rights operate

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What do water rights do for their holders and for Government?

Holders: security of title (freedom from interference) - enforceability in court against others reliability of title (to the extent permitted by available water flows) both necessary for investment

Government: manage competing allocations (Register)

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What is the nature of water rights?

A legal entitlement It can be claimed before law courts against the claims of others, including the Government.

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What do water rights consist of?

Rights abstraction (surface and groundwater) for a variety of purposes free from interference enforceable in courts if necessary

Obligations return of unused water treat wastewater pay water charges use water in compliance with license restrictions (terms and conditions of grant)

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In practice, just “what” is a water right?

Originate from grants by the Government

Various forms – legally equal: licences, authorizations, permits or concessions rights and obligations contained therein standard formats provided by law

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How to know that a water right has been granted (and to whom)?

Register of water rights: changes recorded transparent sound business practice

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Can water rights change during their lifetime?

Dynamic and can be changed either by the individual, or by the government Individual transfers (sale, succession)

Government can vary, suspend, or terminate right/grant force majeure public interest (subject to compensation) penalty

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Conclusions The main feature of modern water rights systems are with a view to reconciling equity and efficiency of allocation and use of scarce water resources, and flexibility to adjust allocation patterns in response to changing circumstances and security of title sought by investors

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Further readings

D.Caponera, 1992. Principles of water law and administration, Balkema. S.Burchi and A.d’Andrea, 2003. Preparing national regulations for water resources management – Principles and practice, FAO Legislative Study No.80, FAO, Rome, Italy. H.Garduño Velasco, 2001. Water rights administration – Experience, issues and guidelines, FAO Legislative Study No.70, FAO, Rome, Italy. S.Hodgson, 2006. Modern water rights – Theory and practice, FAO Legislative Study No.92, FAO, Rome, Italy. © FAO January 2008