Water Actions - Regional

All these situations can be looked at in terms of water rights, broadly defined as socially accepted and enforceable claims to water. This paper will stress the issue of enforceability, making rights meaningful through developing institutions by which those who feel their rights have been impaired can defend their access to water and resolve conflicts over water allocation. A simple question to ask is, if someone feels their rights to water have been denied, how can they seek justice? In too many cases, the answer is that there is no recourse.

Local institutions for water allocation are often unsupported by national law. Customary rights may lack legal standing. Regulations on water rights are often incomplete, contradictory, and unenforced. Water users may have little knowledge of the laws and regulations that define formal water rights. Courts are often distant, distrusted, and take years or even decades to deliver verdicts that seem more linked to the ability of litigants to pay than to jurisprudence. Technical measurements of water flows may be nonexistent, secret, or so inaccurate as to be useless.

Deprivation of water in the tail-end reaches irrigation canals is a classic symptom used to diagnose the lack of effective institutions for resolving conflicts over water allocation. Pumping "races to the bottom" of groundwater aquifers further show how the poor may lose out if effective rates cannot be developed for sharing access to water resources. Whether or not water rights are accepted as human rights only makes a difference if it affects how water users and governments regulate access to water. Issuing formal water licenses on paper matters little, unless licensees can defend their rights against infringement.

Water rights may offer a way for poor irrigators to protect their water from being stealthily stolen away by expanding cities. However, formalization of water rights may also expand opportunities for those who are wealthier, more powerful, and better connected to manipulate registration to serve their interests. In theory, and sometimes in practice, transferable water rights create opportunities for win-win transactions to voluntarily reallocate water to more productive uses. However, initiatives to introduce water markets are frequently challenged by critics concerned that poor farmers may be exploited and that water may be monopolized by corporations.

Water rights reform is no panacea. It may open a Pandora's box of potential problems. However, without changes in water allocation institutions, the even more likely outcome is that poor people may be further impoverished by losing out in competition over water. This paper outlines options and guidelines that may be useful in formulating pro-poor reforms in irrigation water rights. The next section looks at how deprivation and disempowerment define water poverty. The following sections examine some of the options for developing pro-poor reforms in irrigation water rights. Shares can be equitably negotiated as part of intervention. Rights need to be strengthened for communities and individuals. Measurement can help make rights meaningful. Protecting rights of existing irrigators is a key to making water rights reforms feasible. International experience with water rights reform and legal empowerment illustrate ways to make institutional change more effective.

Contemporary definitions of poverty focus not just on material deprivation, such as inadequate food and water, but also on insecure access to and lack of power over vital livelihood resources, such as irrigation water.² Overcoming poverty means not just exceeding some threshold of daily calories or expenditures, but also securing rights and a voice in governance.

Wealthy and powerful people typically have many ways of protecting their interests. Lack of secure and enforceable rights poses a much bigger problem for those who are poor.³ If their access to an essential resource such as water can be taken away without consultation, compensation, or even advance notice, then their ability to earn a living is fragile. Their ability and incentives to invest in improving their lives are severely compromised.

Within a locality, cooperation in coordinating water allocation among neighbors may be woven into a network of other relationships. However growing water scarcity in a river basin brings conflicts, and the need for coordination, between strangers who may be spread across hundreds of kilometers. An essential task of governance is to create the conditions for peaceful cooperation among strangers: lack of such conditions brews conflict, blocks opportunities, and thereby impoverishes.⁴ Uncertainty undermines livelihood security. Economic gains from trade and specialization depend crucially on trust and expectations of repeated exchanges. Failure to establish conditions under which water rights can be secured represents a failure of governance, with consequences not only for more abstract values such as trust, equity, and citizenship, but also for practical opportunities to earn a living and avoid immiseration.

Water rights may be composed of various bundles of rights to access, consume, exclude, manage, and transfer.⁵ Water rights are usually structured differently and are more limited than rights to land and movable property, which is one reason why some prefer the term water "use" rights. However, whatever the term, water rights are still a form of property rights. Secure property rights can play a vital role in expanding opportunities for poor people to escape from poverty.⁶ Conversely, lack of secure rights perpetuates poverty. The arguments for the role that secure rights to land can play in reducing poverty are compelling, and similar logic applies to water rights.

In many situations, establishing or improving water rights is not easy, and may face even more obstacles than efforts to strengthen rights to land. The specific pathways to change in water allocation institutions may be highly dependent on particular circumstances. Nevertheless, Asian experience reveals a range of opportunities for pro-poor interventions to strengthen water rights.

Share systems that divide water in agreed proportions among users are a traditional solution to defining water rights among groups of farmers to who cooperate to build and manage irrigation systems.⁷ Shareholders decide how to allocate water to available land. A well-designed share system creates incentives to increase efficiency and expand the area served. Rights to water shares are typically linked to obligations to invest in construction and repair, and to respect the water rights of others.

By contrast, governments typically design irrigation systems to distribute water in proportion to land area. In many cases, government interventions ignore and disrupt existing local water rights, such as share systems, while failing to establish an effective alternative. An unfortunate and too common result is that head-enders take a disproportionate amount of water, and tail-enders suffer. Design principles of allocation, for example according to area, are thus not converted into enforceable rights.

One option for government intervention in irrigation, particularly aid that provides new or greatly enhanced water supplies, is to provide water according to a share system, for example to all households, all community members, or all those who invest in new construction, including "sweat equity" in labor. This may formalize shares that are part of existing water allocation arrangements or may establish new shares. The conventional choice of implicitly allocating more water rights to those who already have more land tends to reinforce existing inequities, and neglects an opportunity to reduce poverty. Development of share systems may provide a way to assist and empower poorer households in controlling and using shared water resources.

Allocating irrigation water according to existing landholding is often very acceptable to local power holders, since they usually are the larger landowners. If rights are not clearly defined, then this gives them even more scope to use their power to capture more of the benefits of irrigation. Government's concern for the general good, and more specifically for reducing poverty, justifies looking for ways to spread benefits as broadly and productively as possible.

Government intervention provides the opportunity to renegotiate water allocation, (as well as other essential matters such as how maintenance will be funded and implemented). Philosophically, negotiation requires an approach of working with communities as partners, with a right to say no, to speak up for their own interests and negotiate until mutual agreement is reached, while pursuing solutions that spread benefits as equitably as possible. Such negotiation needs to occur during the planning process, during identification, feasibility study, and design phases when all parties have choices about whether or not to proceed. Water rights should be an essential part of such negotiations.

Negotiations about water rights may be implicit, in discussions of designed command area, plans for water delivery and cropping patterns, control structures, and institutional arrangements for monitoring and enforcing rules about water distribution. Another option is to make this an open and explicit negotiation about water rights, whether those are rights formalized in water licenses, as water shares, or as contractual commitments in service agreements for water distribution. In practice, different instruments may be used depending on local experience and at different levels of irrigation systems, but the general aim should be to have mechanisms that allow transparency, accountability, and enforceability in sharing water.

Many Asian irrigation systems serve hundred or thousands of irrigators. A common argument has been that in such cases it is impossible and inappropriate to recognize individual water rights, and that instead water rights should be only held by collective organizations, such as water user associations, or state agencies operating irrigation systems. However, contemporary information technologies, such as global positioning satellites and geographic information systems have drastically reduced the cost of identifying locations, such as abstraction points; and of storing information, such as about rights holders. Defining individual rights involves technical complexities such as consumptive use and conveyance losses, but many of these must be dealt with in any water rights system. They can be handled in practical ways by employing standard rates, with provisions for exceptions in special cases. Therefore, the feasibility of recognizing individual water rights deserves to be assessed more carefully.

Concern for equity and understanding of local power structures lead to the conclusion that it is not appropriate to simply delegate control over water rights to local organizations with no further accountability or appeal. There is also a risk that arguments for collective rights simply become another excuse for avoiding accountability in irrigation management. For many aspects of management, users may be happy to have an organization manage rights on their behalf. However, for irrigation water rights to be meaningful, especially for the poor, rights need to be recognized and enforceable for individual irrigators.

Individual water rights can and should constitute the foundation for a system of water management. Water rights also need to be recognized at higher, aggregate levels of managing bulk flows. However, unless individual rights can be clarified and enforced, those rights, particularly of poorer, smaller-scale farmers, are at risk of being neglected.

The final two decades of the twentieth century saw many attempts to improve irrigation management through increased participation. This was driven in part by frustration with irrigation operation and maintenance, including head-tail inequities in water distribution and neglected maintenance. Large irrigation agencies played a major role in building irrigation systems, but performance in operation and maintenance disappointed. Reforms in irrigation management were also supported by paradigm shifts in development thinking towards democratization, decentralization, participation, and good governance. Some pilot projects for participatory approaches achieved dramatic results in providing water to tail-enders who previously had received little or no water.⁸ In Asia, such reforms have yielded noticeable benefits in improving communications between irrigation agencies and water users, but have often fallen far short of radical transformation in irrigation management and performance. Reforms have often been more about giving users a voice than about empowering them with rights.

In many cases, reforms have been partial and incomplete, driven more by hopes of reducing government 0&M budgets than by objectives of improving services to farmers.⁹ Agencies have often not developed the capability to fulfill new responsibilities, such as reliable delivery of bulk water supplies and regulatory oversight of water allocation. The difficult tasks of restructuring agency objectives, organization, and staffing have often been deferred and neglected. The appearance of participation: meetings held, water user associations formed, charters approved and training conducted, has often been much stronger than the substance of changes in operation and maintenance. Where greater devolution has occurred, the limitations of local organizations have also become apparent, including leaders' limited accountability to members and susceptibility to corruption in local civil works.

One option for future efforts to improve participation is to more explicitly incorporate irrigation water rights. Stronger devolution of rights and authority over water allocation may make reform more attractive and effective for local organizations. However, concern for local inequities does require ensuring that individual irrigators can appeal for outside help if they feel they have been treated unfairly, not just blindly handing over water allocation to local control. Developing better capacity to regulate water rights and referee the allocation of water resources, mostly along rivers and between irrigation systems, but also at the local level when necessary is essential. Building capacity for such roles can provide a focus for transforming agency roles from operators to regulators.

The continual quest for new ideas and approaches is leading to more attention to approaches to irrigation development that may complement or substitute for participatory reforms, including more sophisticated measurement and "modernization" of water control, greater involvement of local government entities, and measures such as operating concessions.

It is useful to be clear about the extent to which irrigation can be managed without necessarily requiring quantitative measurement. At the local level, irrigators can employ proportional weirs and timing of irrigation turns to apply irrigation water rights without knowing the actual volumes involved. Over larger areas, rotations during scarcity and seasonal alternations in areas designated for irrigated cropping can be carried out without depending on quantitative measurements. Feedback from downstream areas, for example about shortages and about excess water spilling to drains, can be used to incrementally adjust irrigation operations. Nevertheless, improvement in the management of larger irrigation systems can usually benefit from better quantitative data about actual flows.

Quantitative information on water flows depends on recording and sharing information from properly installed (and regularly recalibrated) measuring devices. Strengthening of irrigation water rights is highly compatible with efforts to improve or "modernize" irrigation infrastructure and operating procedures. Better measurement supports more transparent governance of irrigation water allocation.

Other innovative approaches to irrigation management, such as operating concessions, also require more explicit specification of service obligations, both to farmers, and to the concessionaire. De facto, they thus clarify and strengthen implicit water rights. Such approaches are also quite compatible with processes to strengthen and formalize water rights.

Hydraulic boundaries typically differ from administrative boundaries, so water management is often organized on a hydraulic basis or at least reliance on hydraulic units is advocated, for example in the development of integrated water resources management. However, water management is difficult without support from local administrative authorities. For water rights to be meaningful there have to be ways to enforce rights.

Management of a common pool resource such as irrigation requires selective incentives to assure and reward those who cooperate, and sanction those who do not cooperate. The inability of irrigation agencies to enforce water allocation, especially at the local level, has been one of the reasons for promoting participation and management transfer. However, many attempts to develop water user organizations have treated them like voluntary cooperatives, creating organizations without the authority needed for effective enforcement.

Typically, local governments already have the necessary powers, for example to establish rules and punish violators. One alternative is engage local governments more closely in water management. Another option is to ensure that irrigation management entities do have the necessary power, for example through establishing special districts with clear authority to establish and collect fees and enforce compliance with rules. Offering genuine authority for self-governance (within a larger regulatory framework) can provide additional incentives for participation, and a means to integrate existing local water rights systems with basin water management.

One way or another, for irrigation water rights to be effective, institutional arrangements are needed that ensure that rules can be authoritatively enforced. This is part of a shift to developing good governance in irrigation, looking not just at technical issues but establishing an institutional framework within which people have rights, participation, and mean to protect their rights.

As cities grow, and as more and more river basins "close" with no surplus water for at least part of the year, demands increase to move water away from agriculture. Water for drinking and domestic use receives higher priority, (though it is worth remembering that most urban water supply is used for things other than drinking, bathing and washing). The political and economic power of cities gives them a strong position in competition for water, even if their typical downstream location puts them at a geographic disadvantage compared to irrigators. In many countries, the question is not whether water will shift from agriculture to municipal and industrial use, but rather how this transfer will occur. If irrigation water rights are unrecognized and overridden, then reallocation is likely to be inefficient, inequitable, and meet with increasing opposition, ultimately leading to waste and rigidity in water allocation.

Most countries lack institutional arrangements to carry out water reallocation between sectors in a way that is transparent, equitable, and efficient. Transfers for specific projects are often handled on an ad hoc basis. Environmental impact procedures may provide a partial framework for looking at consequences of water transfers in large projects. However, while principles and procedures for land acquisition and resettlement have now been extensively developed, such approaches are not yet available for water acquisition.

While river basin organizations have been set up in some cases, public forums for forming policies and deliberating on decisions about basin water reallocation still tend to be absent or weak. A key component of making irrigation water rights meaningful is further development of institutions through which decisions about reallocation can be made in a systematic and transparent way.

Practical approaches to developing water rights

Developing a water rights system is sometimes mistakenly seen as just a matter of issuing formal licenses. Such a misunderstanding risks creating "cadastre disasters" wasting large amounts of resources on formal registration, in ways that undermine local resource management, while failing to establish an effective water rights system.¹

Much of the literature on water rights has been dominated by polarized and ideological debates about the potential advantages and dangers of water markets, while paying less attention to how water rights have actually evolved in practice. Recent synthesis of practical international experience in developing water rights systems suggest some key principles, which are also applicable to developing irrigation water rights:¹

Use a parallel-track approach to integrate water law drafting with preparation of regulations and basin-level pilot testing of new approaches
Ensure adequate time and resources for participation in all stages
Recognize customary rights, particularly through empowerment of local institutions, without insisting on immediate formalization
Pro-actively include poor people, women, and ethnic minorities in designing reforms that protect the interests of the poor and promote equity
Apply an action research process for continuing learning and improvement
Learn from diverse international experience, to avoid wasting time "reinventing the wheel" and to avoid being locked into narrow and inappropriate concepts
Sequence reforms to fit basin problems and priorities, starting by strengthening stakeholder forums for managing conflicts, before tackling the more complex and contentious challenges of intersectoral reallocation

Source: International Working Conference in Water Rights, Hanoi, Viet Nam, February 2003

Proposals for transferable water rights in countries such as Sri Lanka, Thailand, and Indonesia have generated intense debate about their possible implications for farmers losing access to irrigation water.¹⁰ Such debates raise important questions about the future for rural areas, for security of access to resources on which they rely and for opportunities for rural people to improve their lives. Contrasting views of rural self-reliance and commercialized agriculture often underlie such debates. In theory, leasing or selling water rights could offer a source of income for poor people, for whom production of irrigated commodity crops is relatively unrewarding. There are risks that under conditions of very asymmetric power and information, and financial duress, farmers might lose water forever, in exchange for at best short-term financial gains.

Transferability is a key issue. Lack of consensus about whether water rights should be transferable may block other reforms in water rights. In most countries, any rapid and comprehensive shift to transferable rights appears infeasible and unacceptable. Development of rights-based markets is not a quick or easy process.¹¹ In this context, development of water rights systems may be much more politically and institutionally feasible if it concentrates on first clarifying and strengthening existing rights, and then subsequently working on the development of mechanisms for water reallocation, including the possibility of transferable rights.

This would mean that in the short to medium term, reallocation of water, including any reductions in existing rights and possible compensation, would be mediated through the institutions responsible for basin governance. Selling or leasing water rights would not be an available option, for the poor or others. The benefits from water rights, and implications for poverty, would depend on using water for irrigation. This is unlikely to satisfy purist believers in water markets, but may allow pragmatic progress in developing better institutions for basin water management. Urban expansion and other changes in water demand will drive efforts to reallocate. To the extent that such transactions become more frequent, and satisfactory arrangements for compensation are developed, processes for transfer may become more flexible.

A water rights system can only function if rights holders are capable of protecting their rights. Legal empowerment approaches illustrate ways to go beyond conventional "rule of law" efforts, for example developing regulations, administrative procedures and courts, to also emphasize engaging people, particularly poor people, in education and capacity building so they can act more effectively to seek justice and better governance.¹²

Educational efforts, sometimes referred to as legal literacy, can improve awareness not just of rules and regulations but also of who to see and what to do in the case of problems. Outside organizations can help with preparation and dissemination of materials through training and other media, and as facilitators helping citizens to organize themselves and take action. Paralegals, local people who develop specialized knowledge and skills can play a crucial role. Facilitators and paralegals can be proactive in identifying and working with those who are poor and particularly disadvantaged. Linkages with outside groups can provide crucial backing for those whose rights may have been infringed, enabling them to act in ways that otherwise would not be possible. Networking with others in similar situations can share invaluable experience, and build a basis to lobby for broader reforms.

In developing local capacity to understand and defend rights, including water rights, there are strategic choices to be made, which are likely to depend on the local and national context, and on the philosophies and strategies of those involved. Under some circumstances, adversarial approaches, which emphasize conflict, highlight injustice and inequity, pursue media publicity, and advocate fundamental reforms, may be very effective. In other cases, a quieter more pragmatic style of engaging with government agencies to solve specific problems may be more productive. Many different approaches are possible, and it may be helpful to have a variety of groups pursuing different strategies, some more confrontational and some more cooperative. However, for a particular group, it may be important to formulate a consistent strategy that is compatible with local conditions, organizational capacity, personal philosophies, and the characteristics of partner organizations.

This paper has employed a broad definition of water rights, as socially acceptable and enforceable claims on water, with an emphasis on strengthening the means for rights holders to defend their access to water and obtain justice. Many ways exist for using irrigation water rights to improve irrigation and water resource management. Current approaches typically neglect important opportunities to make intervention more pro-poor. In particular, four priorities for new approaches can be recommended:

Water

Country Water Action: Asia
Irrigation Water Rights:
Options for Pro-Poor Reform
(November 2004)

This paper was presented by Bryan Bruns at the Regional Workshop and Policy Roundable Discussion on Pro-Poor Intervention Strategies in Irrigated Agriculture in Asia.

Water

Country Water Action: Asia Irrigation Water Rights: Options for Pro-Poor Reform(November 2004)

This paper was presented by Bryan Bruns at the Regional Workshop and Policy Roundable Discussion on Pro-Poor Intervention Strategies in Irrigated Agriculture in Asia.

Country Water Action: Asia
Irrigation Water Rights:
Options for Pro-Poor Reform
(November 2004)