Newsletter and Technical Publications
<Sourcebook of Alternative Technologies for
in Small Island Developing States>
PART D - ANNEXES
Legislation concerning water resources and supply systems on small
islands varies from being almost non-existent to very detailed. Often the
latter type is out-dated, redundant, ambiguous or difficult to enforce.
Many problems have arisen due to non-recognition of problems caused by
inadequate or non-existent legislation; difficulties in enacting new
legislation; and, difficulties in enforcing existing legislation. There
are many cases where inadequate legislation has prevented government water
authorities from effectively controlling and managing water resources and
supply systems. Specific problems relate to inadequate control of
quantities extracted from wells or boreholes; and, inadequate protection
of groundwater quality. Legislation may be totally or partially lacking in
this regard. For example, a review of water resources legislation in
selected Caribbean countries (United Nations, 1986) reported the case of
Montserrat, where legislation existed only for wells which form part of
the public water supply system while other wells and groundwater resources
in general were not protected by legislation from either direct or
indirect pollution. In other cases, the potential for pollution may be
high due to inadequate control of human settlement in water reserve areas;
inadequate control, misuse, or wastage of water supplied to consumers,
including water from public standpipes or communal tanks that is intended
solely for drinking and cooking purposes being used for washing or bathing
in water; and, protracted disputes over water rights, such as known cases
in the Hawaiian Islands (Lau, 1988) and Canary Islands. These and other
problems often arise due to a lack of understanding of the seriousness of
the problems of water wastage and pollution.
Legislation, however, is only part of the answer. There also needs to be
community education and information programming about water conservation
and protection. Even if legislation has been introduced, it is often
difficult to enforce due to inadequate sewerage and solid waste disposal
systems caused by poor design, construction, operation, and/or
maintenance; insufficient monitoring to detect signs of pollution;
inadequate and/or poorly trained enforcement agents, health inspectors,
and/or police; and/or, reluctance on the part of the enforcement agents to
enforce legislation in small communities where the agents are an integral
part of the community.
It is difficult, if not impossible, to prescribe water legislation for
universal application to small islands, due to the diversity of conditions
and cultural backgrounds. However, there are some guidelines which may be
considered to be generally applicable in most cases. Other examples of
specific legislation are presented by the United Nations (1986) in a
review of water resources legislation in a number of countries in the
Caribbean, including some small island nations, and by Pulea (1983) in a
review of environmental protection legislation, including that pertaining
to water quality, in countries of the South Pacific.
The broad objectives of water resources legislation in an island context
are summarised by Wright (1984) as ensuring an adequate and safe water
supply to meet the needs of the population; promoting the optimum
utilisation, protection and conservation of water resources; protecting
user rights; and, establishing an appropriate water resources management
role for government. Based on the information provided by the United
Nations (1986) and ESCAP (1983), aspects which need to be considered in
drafting, reviewing, updating or amending legislation include ownership
and control of water resources; rights to water use; the role of public
bodies; permitting of water exploration and licensing of water extraction
or diversion; declaration and protection of water reserves; provision of
public water supplies and connections to water supply systems, including
metering of, and charging for, water provided from public supplies;
definition of private water supplies and storages of water; establishment
of standards, public health aspects regulations including mosquito and
water-borne disease vector control; inspection and monitoring;
fire-fighting; water conservation and measures to limit the waste and
misuse of water, malicious damage to water-supply facilities, and control
and use of water supplies after natural disasters; and, determination of
adequate penalty provisions for breaches or non-compliance. Depending on
the particular circumstances, there may also be a need for legislation
concerning related matters such as land management issues, particularly
the prevention and control of soil erosion in agricultural and forested
areas; controls on the use of agricultural chemicals; provision of
sanitary sewerage and stormwater management systems, building regulations,
and related site-specific criteria; floodplain management; maintenance of
the riparian rights of downstream users by ensuring minimum flows; and,
mechanisms for the handling of water-related disputes.
Level of Involvement
Because of its complexity, the drafting, review, and/or amendment of
legislation normally requires the assistance of legal specialists. Draft
legislation, if not originated from the relevant government agencies,
should also be vetted by the relevant government agencies before
enactment. It is important that legislation take into account the
administrative and judicial capacity to implement it. In the case of small
islands which are part of continental or large island countries, such
assistance would normally be available in-country. National governments
are best positioned to consider the special conditions and customs of
their island populations, and should undertake such review before directly
applying national (mainland or large island) water resources legislation
to small islands. For independent small island nations, external
assistance may be required, generally through international or bilateral
aid agreements. The United Nations Department of Technical Cooperation for
Development, United Nations Environment Programme, the Food and
Agriculture Organisation of the United Nations, and The World Bank have
assisted a number of island countries in the Caribbean and the Pacific
with a review of their current legislation and the preparation of new
legislation. Legislation from other islands could be reviewed as a basis
for drafting or amending legislation, with due consideration being given
to local customs and conditions. It is essential that customary law be
taken into account, especially in islands with long standing traditions,
otherwise the legislation may not be accepted and applied. Public
participation, as mentioned earlier, should be a necessary adjunct to the
legislative process. In addition, it may be appropriate for water
resources legislation to be drafted on a regional basis for islands where
similar natural, political and socio-economic conditions prevail.
Although legislation should be comprehensive, it also should be framed
in the simplest way possible. One approach is for the main body of
legislation to provide a general framework of powers and responsibilities
and restraints (Davis, 1980). Within this framework, the detailed and
exhaustive rules and regulations can be drafted as subsidiary legislation.
This approach provided an exceptional degree of flexibility to the rule
making process, within the framed intent of the parliamentary law makers,
as the process of detailed and specific modification and amendment of the
legislation can be delegated to a relevant ministerial department or to
the cabinet of ministers.
Extent of Use
Lau (1988) outlined the principles of the Hawaii State Water Code which
was enacted in 1987 after almost a decade of preparation. This legislation
is based on the perceived obligations of the State of Hawaii to protect,
control, and regulate the use of the water resources of the State for the
benefit of its people. It is a legal compromise between a free-market
approach (where water rights are perpetual and may be bought and sold) and
a regulated approach (where limited-duration permits are issued by the
government to users). Under the Code, permits are effectively perpetual,
but cannot be transferred for other users, thus favouring present over
possible future users. Critics emphasise that this discourages the
efficient use of water and prevents the government from reallocating water
for other uses. However, the Code only applies to designated
water-management areas; outside of these areas, a permit is required, but
only for the record. The Hawaii State Water Code created a dual system of
water rights, which no one regards as perfect, but which meets the
immediate needs of the island community (Lau, 1988).
In Bermuda, water-related legislation includes the promulgation of
building regulations that require provision of rainwater harvesting
systems. The Public Health (Water Storage) Regulations, 1951, require that
80% of the roof area (or an equivalent area of ground catchment) be
adequately guttered, and that storage tank capacities be not less than "one
hundred gallons for every ten square feet (approx. 50 l/m2) of
prescribed area of catchment" (Thomas, 1989a).
Further Development of the Technology
Davis (1980) provides useful suggestions for drafting water resources
legislation, including a model legislative code. Further information
regarding water resources legislation, which may be of assistance to
developing island countries, is presented by the United Nations (1986).
This latter publication contains information about water resources
legislation in a number of small island countries in the Caribbean;
namely, Antigua and Barbuda, Cayman Islands, Montserrat, St. Kitts and
Nevis, and St. Vincent and the Grenadines. Other specific country reports
which may be of assistance are Wilkinson (1985) and Clark (1986,
Clark, S.D. 1986. Review of Watershed Management Legislation, Fiji
Ministry of Primary Industries. United Nations Development Programme
Report No. FIJ/86/001, UNDP, New York.
Clark, S.D. 1987. Vanuatu, Draft Water Resources Act and Orders,
Final Report. Food and Agricultural Organisation Report No.
RAS/78/034, FAO, Rome. 136 pp.
Clark, S.D. 1988. Western Samoa: A Possible Framework for Water
Resources Legislation. United Nations Department of Technical
Cooperation for Development Report No. INT/86/R30, UNDP, New York. 110 pp.
Davis, C.C. 1980. Overview of water resources legislation and
administration. In: P. Hadwen (Ed.), Proceedings of the United
Nations Seminar on Small Island Water Problems, United Nations
Development Programme, New York. pp. 488-503.
ESCAP [Economic and Social Commission for Asia and the Pacific] 1983.
Draft comprehensive programme for water resources development in the
Pacific Region. In: Proceedings of the Meeting on Water Resources
Development in the South Pacific. United Nations Water Resources
Series No. 57, 41-47.
Lau, L.S. 1988. State Water Code - A Masterpiece of Compromise. Wiliki
o Hawaii (Engineer of Hawaii), 23(8/9):2 pp.
Pulea, M. 1983. An overview of environmental protection legislation
in the South Pacific countries. South Pacific Regional Environment
Programme Topic Review 13, United Nations Environment Programme, Bangkok.
63 pp. (updated from 1981 version by S. Venkatesh and S. Va'ai).
Thomas, E.N. 1989. Water Resources and Supply, Bermuda. In:
Interregional Seminar on Water Resources Management Techniques for Small
Island Countries. United Nations Development Programme Report No.
ISWSI/SEM/8, United Nations Department of Technical Cooperation and
Development, Suva. 25 pp.
United Nations 1986. Water Resources Legislation and Administration
in Selected Caribbean Countries. United Nations Natural
Resources/Water Series No. 16, 163 pp.
UNESCO [United Nations Education Scientific and Cultural Organization]
1991. Hydrology and Water Resources of Small Islands, A Practical
Guide. Studies and Reports on Hydrology No. 49, UNESCO, Paris. 435 pp.
Wilkinson, G.K. 1985. Final Report and Proposal on National Water
Resources Legislation for Tonga. FAO Report No. RAS/79/123, Food and
Agriculture Organisation of the United Nations, Rome. 131 pp.
Wright, E.P. 1984. Water Law. In: Proceedings of the Regional
Workshop on Water Resources of Small Islands, Commonwealth Science
Council Technical Publication No. 154, Part 2, 55-66.