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Does the Law stymie the Science? The role of Law in achieving

sustainable groundwater management Andrew AllanCentre for Water Law,Policy and Science

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 2

Importance of groundwater:

• Roughly 25-30% of water abstracted globally comes from groundwater, with 65% for agric, 15% for industry, and 20% for domestic use – varies across jurisdictions, however

• Return flows often go back into surface waters rather than recharge (e.g. in Victoria, Australia, figures are 16% and 1% respectively (Turner))

• In EU, 75% of population relies on groundwater for drinking water• Groundwater often more readily available locally than surface water –

so often more used in rural areas (also re. lack of water service provision

• Seen as potential buffer to changes in climate over short-medium term (e.g. MacDonald 2012)

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3

What does science (and policy) demand of management?

• Integration of management of:– surface and groundwaters– Quantity and quality (i.e. abstraction, extraction management and pollution

control)

• Capacity to manage in the context of change – e.g.– Climate– Urbanisation– Changing resource availability patterns

• Social equity e.g.– MDGs– Public health concerns

• Ecosystem protection• Effective implementation – e.g.

– Appropriate institutional management– Enforcement / compliance

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 4

Legal approaches to groundwater management:

Originally, law affected by lack of understanding of groundwater: e.g.

“the existence, origin, and course of such [underground] waters, and the causes which govern

and direct their movements, are so secret, occult, and concealed that an attempt to administer any

set of legal rules in respect to them would be involved in hopeless uncertainty, and would,

therefore, be practically impossible”

With re. reasons for application of “English rule” of capture (Frazier v. Brown 12 Ohio St. 294 (1861), quoted in Houston & TC Railway v. East 81 S.W. 29 (Tex. 1904) and The Edwards Aquifer Authority and State of

Texas v. Day and McDaniel (February 2012)

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5

Why is groundwater so difficult to regulate?

• Potentially long time scales between cause and impact, and between related ground and surface waters

• Uncertainty over extent of aquifers• Difficulty in monitoring user consumption /

enforcing pumping limitations• Aquifer pollution may be extremely hard to

remedy• Lack of effective international regime for

transboundary aquifers

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 6

Management Integration:

• Legal regimes often separate for ground and surface waters, quantitative management and pollution control – e.g. in India, where groundwater extraction largely

unregulated, and even where consolidation is happening (e.g. Maharashtra), all four elements are managed separately

• In EU, WFD requires combined management (though even here historical approaches linger – e.g. in Finland, quantity and quality are addressed in separate legislation and through process management)

• Difficulty of combined management in developing countries – expensive, data paucity

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 7

Capacity to manage change:

Rights of water use (including pollution) must be variable over time•Where private property rights govern groundwater use rights, can be problematic where environmental and social equity considerations are taken into account – e.g. in western USA, prior appropriation system (first in time, first in right) can be problematic.•Rights need to be quantifiable – rights to use ‘reasonable’ amounts of water make things more problematic and encourage use of courts / judges in determination•In Victoria (Aus), groundwater rights are issued as share of available resource•In EU, RBMP revision process permits change, but does local law allow?Problems associated with capacity to measure impacts and changes in resource availability (e.g. Finland – rights are perpetual, subject to impact, but can impact be measured?)

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 8

Ecosystem protection and social equity

• Private property-based water use rights systems can create problems for ecosystem protection (is compensation payable, for instance?)

• In Spain, mixed public and residual private use rights make ecosystem protection more difficult. Ecosystem protection is ‘new’ user, and existing users reluctant to accommodate.

• Social equity in developing countries, in India, for example, harmed by race to the bottom encouraged by lax regulation and advantages of the wealthy.

• Control of diffuse pollution is difficult everywhere (voluntary guidelines or compulsory standards?), even in EU where it is obligatory

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 9

Effective implementation

• Good-looking law not necessarily ideal for local situations if implementation poor. Could be caused by:– Institutional and legal confusion (e.g. c.15 European

directives affecting groundwater management – good for clarity?)

– Limited financial/human resource capacity– Lack of monitoring infrastructure / data (explaining e.g.

Finland’s reliance on self-monitoring by users)• Australia making use of new water accounting

processes to determine availability, and consequently aid compliance among other things.

• Institutional powers, responsibilities and functions need to be appropriately matched

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 10

So does law stymie the science?

Well, yes, it can potentially…..

BUTDrafted well, it is critical for ensuring that science can be translated into practice. Without good law, sustainable groundwater management will not be possible globally.

It is not the panacaea however. In context where environmental protection is more important than ever, appropriate monitoring infrastructure must be in place (question over use of GIS data in courts eg. In Spain). Political will must also be there, and that is difficult where main economic players are also main water users…..

THANK YOU!

www.dundee.ac.uk/water

Research for this presentation was done as part of the GENESIS project (www.thegenesisproject.eu), funded under the EU’s Seventh Framework Programme for Research.