Water resources law
Water resources 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 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:- Surface waters—lakes, rivers, streams, oceans, and wetlands;
- Surface runoff—generally water that flows across the land from rain, floodwaters, and snowmelt before those waters reach watercourses, lakes, wetlands, or oceans;
- Groundwater—particularly water present in aquifers.
History
Difficulties of water rights
Water is uniquely difficult to regulate, because laws are designed mainly for land. Water is mobile, its supply varies by year, season, and location, and it can be used simultaneously by many entities. As with property 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, while others consume much of what they take, and still others use water without diverting it at all. 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 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. Although water law is still regulated mainly by individual countries, there are international sets of proposed rules such as the and the .
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 body next to it. 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 a combination of the two models.Water law by country
International law
The right to use 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. Additionally, the United Nations passed a resolution stating that the member states "recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights."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. 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.In the state of New South Wales, water laws are enforced by an independent regulatory body; the Natural Resources Access Regulator.
Tasmania
The Tasmanian Water Corporation compulsorily acquired all drinking water supply infrastructure previously managed by local councils This policy was not popular with all local councillors.Iran
Seventh program of Iranian government in 2023-22 ordered the preparing and deployment of a new the bureau of unified water resource administration system.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
Many states in the Midwestern US, such as Wisconsin, North Dakota, South Dakota, Nebraska, and Kansas, employ a riparian system of law when it comes to water resources.
Water law in England and Wales
Private companies are obliged to publish annually a sizeable report providing a relevant amount of nationwide comparable data on costs, revenues, profits, and performance levels. An independent regulatory authority of the water industry sector analyzes private companies outcomes and sets an allowed level of return which is not fixed and incentive-based.Privatizations in the UK were driven by an historical under-investment on an asset-intensive sector.