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Newsletter and Technical Publications

<Sourcebook of Alternative Technologies for Freshwater Augumentation
in Small Island Developing States>


PART D - ANNEXES

Annex 5

Water Legislation

Introduction

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.

Technical Description

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.

Suitability

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, 1987,1988).

Information Sources

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.

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