SUSTAINABLE WATER MANAGEMENT:
COMPARATIVE PERSPECTIVES FROM AUSTRALIA, EUROPE AND THE UNITED STATES

Professor William L. Andreen (co-convenor)
Edgar L. Clarkson Professor of Law, University of Alabama School of Law

THE EVOLVING CONTOURS OF WATER LAW IN THE UNITED STATES
Although Australia and the United States share a common law heritage, water law has developed in significantly different patterns in the two nations. Much of the credit for Australia=s different course can be ascribed to Alfred Deakin, who after taking a study tour of the American West in 1885, wrote a report that rejected the doctrine of prior appropriation as used in the arid states of the American West and advocated a system in which the rights of the state were elevated over those of the individual.

Unfortunately, both countries have generally treated water, just like land, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the severe damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. Both countries, therefore, face the difficult challenge of trying at a late date to bring together two separate, but inextricably connected, disciplines, one focusing on water use and the other on water quality. The challenge is daunting, especially in light of both existing uses of water C giving rise to settled expectations in Australia and often confirmed as a matter of right in the United States C and anticipated growth in demand.

Complicating the situation in the United States is its fragmented approach to law and regulation dealing with watershed issues. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the notable exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.

After discussing the three separate regimes governing water use, water quality and land use, the paper will discuss and critically appraise a number of approaches for trying to integrate these regulatory schemes into a mechanism that can enhance and protect the integrity of our aquatic systems while also meeting many human needs in a sustainable and adaptive manner. Perhaps the most important aspect of this analysis lies in its attempt to connect, in terms of law and institutions, the natural and symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river or other freshwater system as part of a larger interdependent ecosystem, one linking all land and aquatic features in a particular watershed.

Professor William Andreen is the Edgar L. Clarkson Professor of Law at the University of Alabama School of Law and a Scholar with the Center for Progressive Reform. He is also currently serving as a Senior Fulbright Specialist in Law at the Australian National University (ANU) and is a Visiting Fellow with the National Europe Center at the ANU. Professor Andreen is a graduate of the College of Wooster (Ohio) and Columbia University School of Law. At Columbia, he was the Special Projects Editor of the Columbia Journal of Transnational Law and a Harlan Fiske Stone Scholar. After two years of litigation practice with an Atlanta law firm, he joined the U.S. Environmental Protection Agency, Region 4, as Assistant Regional Counsel where he remained for four years. In 1983, Professor Andreen became a faculty member at the University of Alabama School of Law. During the spring of 1991, he served as a Visiting Fellow in the Law Faculty at the ANU, and during the Spring of 2005, he served as a Visiting Professor at Washington and Lee University School of Law.

Professor Andreen has served in a number of legal and advisory roles during his career including: Legal Advisor to the National Environment Management Council of Tanzania (1994-1996); faculty member in a Joint Legal Education Development Project at the Law Faculty, Mekelle University, Ethiopia (Nov.-Dec. 2001; April 2003; March-April 2004); chair of the Environmental Law Section of the American Association of Law Schools; a member of the Environmental Law Commission of the World Conservation Union (IUCN); President and currently Of Counsel to the Alabama Rivers Alliance; co-chair of the Enforcement and Administrative Penalties Stakeholder Committee of the Alabama Environmental Management Commission; and a member of Congressman Artur Davis= Environmental Justice Policy Working Group.

He has published in Australia and Tanzania, as well as in the United States where his articles have appeared in such reviews as the Stanford Environmental Law Journal, the Columbia Journal of Environmental Law, the Indiana Law Journal, the George Washington Law Review, the Alabama Law Review, and the North Carolina Law Review. Professor Andreen teaches Environmental Law, International Environmental Law, and Administrative Law.

Professor Angela H. Arthington
Professor, Centre for Riverine Landscapes and Cooperative Research Centre for Freshwater Ecology, Griffith University

GLOBAL INITIATIVES IN SUSTAINABLE MANAGEMENT OF FRESHWATER ECOSYSTEMS: PERSPECTIVES FROM AUSTRALIA
There is growing awareness that maintenance of natural variability in river and wetland water regimes is essential to sustain freshwater ecosystems and the societal benefits they provide, yet the environmental water requirements of freshwater systems typically take second place to human uses of rivers and their floodplains for urban, agricultural and industrial activities. Balancing societal needs for water with ecological needs (environmental flows) is a universal challenge, and one that is increasing as the global population rises. To compound matters, global climate change presents new uncertainties about the spatial and temporal variability of precipitation and river flows, probably leading to increasing water shortages and escalating ecosystem stress. With growing recognition of human impacts on aquatic ecosystems and the looming freshwater biodiversity ‘crisis’, increasing attention is being paid internationally to environmental aspects of water management. Such efforts include the reflections of the World Commission on Dams (2000), the Water Framework Directive of the European Union (2000), the IUCN’s environmental water initiative launched at the Third World Water Forum, Kyoto (2003), the CGIAR Challenge Program on Water and Food (2004), the Global Water System Project (2005), the Millenium Ecosystem Assessment (2005) and the recently initiated DIVERSITAS Freshwater Cross-cutting Network and Science Plan (2005). These international initiatives signify a complex network of interrelated and collaborative programs embracing political, social, economic, legal and environmental dimensions, underpinned by interdisciplinary science partnerships between national and international research institutes, governments, NGOs and river basin communities. This paper will demonstrate how the Australian science community is contributing unique experiences to this global effort.

Angela Arthington is Professor of Freshwater Ecology in the Australian School of Environmental Studies, at Griffith University, Brisbane, and Program Leader (Water Allocation and Environmental Flows) in the Centre for Riverine Landscapes at Griffith. Professor Athington has published extensively on river ecology, the impacts of dams and altered flows, and on the allocation of water rights.

Kathleen H Bowmer
Charles Sturt University/ CSIRO Land and Water

WATER FOR THE ENVIRONMENT – COMPLIANCE, TRADING AND COMMUNITY OBLIGATION
Water for the environment takes a high priority in Australia. In New South Wales, for example, statutory Water Sharing Plans give the environment top rank in the hierarchy of rights to access. Seasonality, as well as volume is important and most Plans take this into account using a combination of ‘hard wired’ and discretionary approaches. Water for icon rivers and sites (Snowy, Living Murray) is being found through water savings and better systems operation. More recently several Catchment Management Authorities have been allocated resources to trade in water for environmental benefit, and leasing of water (as an alternative to trading) has been proposed. The role of groundwater replenishment in maintaining dependent ecosystems is also being recognised. Currently, in State Water accounting, groundwater replenishment, evaporation and other losses are not isolated from water specifically reserved for the environment, although the National Water Commission is keen to develop better monitoring methods. The ‘environment as customer’ raises new issues in costing and pricing, both for the environment and for consumptive users. Will the environment be required to pay the full share of costs of collection and delivery of water or will the costs be borne by consumptive users or by the community/taxpayer through community obligation?

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Hans Th. A. Bressers
CSTM, University of Twente (The Netherlands)

INTEGRATED REGIMES AND SUSTAINABLE USE OF NATURAL RESOURCES:
A MULTIPLE CASE STUDY ANALYSIS
The European Water Framework Directive (2000) aims at a good ecological status for all European waters by means of integrated water management at river basin level. This paper addresses the questions: (1) do integrated water regimes lead to more sustainable water use? (2) under what conditions can integrated water regimes be achieved? A better understanding is needed of the dynamic relationships between various conflicting uses of water resources, the regimes under which these uses of water resources are managed, and conditions generating regime shifts towards sustainability. To elaborate on ‘institutional regimes for natural resources’ two scientific approaches of resource management are combined: a property rights based approach and a governance based approach. A resource regime is defined as a combination of property rights and elements of governance. The integration of a regime is understood in terms of the regime’s extent and the coherence between property rights and governance elements. Also a pragmatic operationalisation of ‘sustainable use’ as well as a list of possible relevant triggers and change conditions is specified. On the basis of a comparative case study analysis of twenty-four ‘storylines’ in twelve water basins and their regimes across Europe the two research questions are studied and answered. Furthermore, it is concluded that a combination of both scientific approaches makes sense for the analysis of natural resource regimes.

Prof.dr. Hans Bressers is professor of Policy Studies and Environmental Policy at the University of Twente in the Netherlands and scientific director of the Center for Clean Technology and Environmental Policy of that university. He was vice-chairman of the committee which advises the Minister on the efficacy of Dutch environmental policy. He was also the chairman of the Advisory Committee to the Dutch Minister for the Environment for the implementation of environmental policy by local government (1991-2001). Currently he is an independent scientific member of the Commission on Sustainable development of the Dutch Social-Economic Council (SER).

Mr. Michael Cathcart
University of Melbourne, & ABC Radio National

Michael Cathcart is a writer, teacher, broadcaster and performer, with particular interest in theatre, social history and historical geography. He is best known for his one-volume abridgement of Manning Clark’s A History of Australia and as host for the ABC Radio National’s Arts Today program. Michael is currently writing a cultural history of water in Australia.

Professor Peter Cullen
Wentworth Group of Concerned Scientists

Peter Cullen was awarded the PM’s prize for Environmentalist of the Year in 2001 for his work on the National Action Plan for Salinity and Water Quality. Professor Cullen is a member of the Community Advisory Council, the Murray-Darling Ministerial Council and is Chair of the Scientific Advisory Panel for the Lake Eyre Basin Ministerial Forum. Professor Cullen is also a member of the Wentworth Group of Concerned Scientists.

Professor Ian Cowx
University of Hull

LIVING WITHOUT WATER: EUROPEAN INITIATIVES TO PROTECT BIODIVERSITY

Much freshwater fauna throughout the world have been lost or is critically endangered because of a wide range of reasons, mostly directly or indirectly related to anthropogenic activities. These include: pollution, water resource development schemes, loss or change of aquatic habitat, over-exploitation and introduction of exotic species. The main actions taken in an attempt to recover species or conserve biodiversity centre around regulation of exploitation mechanisms and protected areas. However, these seem have met with variable success.

Within the Europe Union, the Habitats Directive and Water Framework Directive are two major policy initiatives that are having profound affects on the management of freshwater ecosystems and the protection of aquatic diversity. This paper takes case studies for Portugal and the UK to show how these Directives have been used, in conjunction with local policy and initiatives, to maintain, improve and develop freshwater fish communities. The roles of habitat, and flow and water level criteria on fish species and populations will be modelled to formulate management policy and actions, to protect and recover important habitat and hydrological features of rivers. The studies show the importance of defining fish community types and protecting critical habitats for the recruitment and survival of the more vulnerable populations. The role of catchment-scale approaches to management are emphasized.

Professor Cowx is the Director of the Hull International Fisheries Institute (HIFI) and has extensive experience in developing (Africa and Asia) and developed countries (UK, Europe and Australia) management strategies of freshwater bodies and aquaculture. He is currently researching into fish capture techniques, stock assessment for management purposes, rehabilitation of inland fisheries and aquatic resource management planning. Professor Cowx has considerable consultancy experience in rehabilitation techniques for freshwater fisheries, integrated aquatic resource management planning, environmental impact assessment, particularly associated with water resources development schemes, and aquaculture extension.

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Colin Creighton
Director, Water for a Healthy Country National Research Flagship, CSIRO

FOOD, FISH AND PEOPLE

Colin Creighton1, Dr Shahbaz Khan2 and Dr Rod Oliver3
1 Director, Water for a Healthy Country National Research Flagship
colin.creighton@csiro.au +61 418 225894
2 Dr Shahbaz Khan, Charles Sturt University
shahbaz.khan@csiro.au +61 2 6933 2927
3 Dr Rod Oliver, Murray Darling Freshwater Research Centre
rod.oliver@csiro.au +61 2 6058 2300

Population projections suggest globally about an extra 1.5 to 2 billion people by 2025. Translated into food supply, this equates to about 29% more land required in production irrigation. Gains in productivity and more efficient water use at farm, scheme and basin scales as can be achieved through current technologies will reduce the concurrent demands for increases in water use. Nevertheless, even with these efficiencies taken in to account, the likely increase in water use equates to an increase in water diversions to agriculture globally of about 18% [IWMI]. Simultaneously there are also demands to reduce the water diverted to irrigation to repair rivers, lakes and estuaries and provide the fish resources these waterways yield as both a food and an ecological resource.

Finding this increase in efficiency and effectiveness of water use is a global challenge. To put the challenge in context, the additional water for irrigated agriculture at about 625km2 is close to the amount of water [800km2] that is now used globally for industrial and urban use.

This paper explores Australian approaches to apply systems science disciplines and identify opportunities for smarter water use. Finding water worldwide will require these systems based approaches. Such approaches illuminate the complexity of water systems and the opportunities to trade off various water benefits.

Colin Creighton is the Director of Water for a Healthy Country National Research Flagship. The Flagship is a multi-disciplinary research initiative working towards a tenfold increase in benefits from water by 2025 through innovation and collaboration. Colin also stands as President of the Australian Water Partnership, part of the Global Water Partnership and is Chair of the National Oceans Office’s Bioregionalisation initiative – building a science base to support the management of Australia’s oceans. Colin previously led the team that delivered the National Land and Water Resources Audit.

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Alex Gardner
Senior Lecturer, Law School, University of Western Australia

ENVIRONMENTAL WATER ALLOCATIONS
Balancing the societal needs for water with ecological needs is a theme of this symposium.

Over the past 15 years, there has been a growing recognition in Australian water policy and law that management of water resources needs to provide better for the allocation of water to the natural environment. The 1994 Council of Australian Governments (“CoAG”) Water Reform Framework gave impetus to defining environmental water allocations by providing that, in relation to water entitlements, State Governments “would [where they had not already done so] give priority to formally determining allocations or entitlements to water, including allocations for the environment as a legitimate user of water”. The CoAG 2004 Intergovernmental Agreement on a National Water Initiative relaunched the efforts to define and manage environmental water allocations by setting a new schedule of actions with the objective of providing “greater certainty for investment and the environment”. Most Australian jurisdictions have now enacted specific legislative provisions for environmental water allocations and begun to implement them in water management plans. Some of these provisions are being litigated.

This paper will address the emerging policy and legislative principles for environmental water allocations in Australia in order to ascertain how the balance between societal and ecological needs is being drawn.

Alex Gardner is a senior lecturer at the UWA Law School where he teaches public law and natural resources law to undergraduate and graduate students. He also teaches water resources law to graduate students at the Australian Centre for Environmental Law at the Australian National University Law School. His main field of research is natural resources and environmental law, with a current focus on water resources law.

Alex holds the degrees of:
BA (Hons) (1980) and LLB (Hons) (1983) from the Australian National University; and
Master of Laws specialising in natural resources law (1987) from the University of British Columbia in Vancouver, Canada.

Alex practised law in Melbourne in the mid-1980s. He joined the staff of UWA Law School in January 1988. Since then, he has published regularly in Australian and overseas law journals relating to natural resources and environmental law, as well as contributing to three books published by the Centre for Mining, Energy and Natural Resources Law of the UWA Law School and to books published by the Environmental Defender’s Office (WA). Alex has for eleven years been a consultant on natural resources and environmental law to community groups (including the Environmental Defender’s Office (WA)), government agencies (especially the Water and Rivers Commission of WA) and private firms in Western Australia.

Alex was a member of the Advisory Council to the Environmental Protection Authority of Western Australia from June 1995 to August 1999. In 2004, he has served as a tribunal member determining water licence appeals in WA.

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Professor Neil Gunningham
Regulatory Institutions Network and School of Resources, Environment and Society, The Australian National University

POLICY INSTRUMENT CHOICE AND DIFFUSE SOURCE POLLUTION

In many jurisdictions, non-point source pollution is today’s leading water quality problem and non-point source pollution from agriculture and the urban periphery, its most intractable dimension. Controlling non-point source pollution presents a very considerable policy challenge given that such pollution cannot be identified and measured as it leaves the property (so performance standards directed at emissions themselves, are inapplicable); and that its impact is mediated by weather conditions, varies over time and is difficult to assess (particularly given time lags between emission and environmental damage).

So what policy instruments should be used to deal with such a complex and seemingly intractable problem? Can we rely largely on voluntarism, or on subsidies, as has been the case in the past, or does the failure of past policy instruments suggest the need for radically different, and often more interventionist solutions? Is it appropriate to treat agriculture as a special case, to be largely excluded from the sorts of controls that have been imposed on the industrial sector and elsewhere? Does the answer lie in identifying a judicious combination of policy instruments, targeted to different sectors and circumstances, and upon the sequence in which they are used, rather than relying on a ‘one size or one instrument fits all’ approach? And can we achieve a better balance between the sometimes-competing policy goals of effectiveness, cost-effectiveness, equity and political acceptability? This paper explores the above questions.

Professor Gunningham joined SRES in January 2002. Prior to that he was Foundation Director of the Australian Centre for Environmental Law at the ANU, Visiting and Senior Fulbright Scholar at the Center for the Study of Law and Society, University of California, Berkeley, and Visiting Fellow at the Centre for the Analysis of Risk and Regulation at the London School of Economics. He is a consultant to the Organisation for Economic Cooperation and Development (OECD), to the United Nations Environment Program (UNEP) and to various environmental regulatory agencies in Australia. Most recently, he began researching the effectiveness of current regulatory, quasi-regulatory and other policy strategies for water quality management.

Dr. Maria Kaika
School of Geography and the Environment, University of Oxford

Maria Kaika is Lecturer in Urban Geography, at the University of Oxford, School of Geography, and a Fellow of St. Edmund Hall, Oxford. In addition to this Dr. Kaika holds a number of professional qualifications as an architect. Her research interests lie with political ecology and the theoretical investigation of the relationship between nature, society and culture. She has worked on several research projects on governance and environmental policy; the political ecology of water supply in western cities; European water policy; theoretical approaches on sustainability; and water supply in European metropolitan areas.

Stefan M.M. Kuks
University of Twente (The Netherlands)

THE EVOLUTION OF NATIONAL WATER REGIMES IN EUROPE: TRANSITIONS IN WATER RIGHTS AND WATER POLICIES
In this paper we present a comparative survey of regime development in six European countries: the Netherlands, Belgium, France, Spain, Italy, and Switzerland. We apply a theoretical framework for the analysis of institutional regimes, water governance and property rights. The survey focuses on the main regime transitions in each country during a period of approximately 200 years (1800-2000) and explains what has actually changed in terms of water rights and water policies. We also summarize the most important triggers that have generated the various transitions in a country. The idea behind screening the evolution of the national water regime in various countries has been to determine whether we find an evolution from simple to complex to integrated regimes and to explore in particular the transitions from one regime phase to another. Although we find a common evolution pattern in all our selected countries, from simple to complex to integrated, the transition moments appear to vary in time. It is interesting to see when and how a regime changes in a country, and to identify the triggers and circumstances that have generated or allowed change. Especially the transition from a complex regime to an integrated regime appears to be a complicated one. While all countries are showing attempts towards integration, they vary in the degree to which these attempts have improved the institutional sustainability of the national water resource regime. The Netherlands, France and Switzerland were relatively early in their attempts at integration, while Belgium, Spain and Italy are lagging behind in very different ways.

Dr. Kuks is a Project Coordinator for an international, comparative research project on the sustainability of water resources in six European countries (Netherlands, Belgium, France, Spain, Italy, Switzerland). Dr Kuks recently published a book entitled The evolution of national water regimes in Europe: transitions in water rights and water policies (Volume 40) and Integrated Governance and Water Basin Management: Conditions for Regime Change and Sustainability (Volume 41). Dr. Kuks is a member of the Regge and Dinkel regional water authority in the Netherlands.

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Professor Henry Vaux
University of California

Dr. Vaux is a professor of resource economics at the University of California and associate vice president for agriculture and natural resources for the University of California system. Dr. Vaux chaired the National Research Council committee that assessed the ability of the United States to meet our future water resources challenges and published the report, Confronting the Nations Water Problems: the Role of Research. He previously served as director of the University of California Water Resource Centre.

Professor T. David Waite
Centre for Water and Waste Technology, School of Civil and Environmental Engineering, The University of New South Wales, Australia

CHEMICAL CONTAMINANTS IN WATER SUPPLIES FROM DESALINATION SYSTEMS

Provision of drinking water by desalination of coastal seawaters is becoming increasingly attractive as availability of supplies from other sources decreases and the cost of membrane treatment drops. One issue to which little attention has been given however is the possible presence of contaminants in desalinated seawaters that may be deleterious to human health. These contaminants range from inorganic species such as boron to organic pollutants such as algal toxins and byproducts arising from the use of chemical disinfectants. The likely extent of this issue will be reviewed in this presentation and approaches to minimizing risks discussed.

Dr Patricia Wouters
University of Dundee

Implementing 'Equitable and Reasonable Utilisation' as a Rule of International Water Law -- Operationalising an Interdisciplinary Approach to Assessing and Assuring Legal Entitlement and Obligations

Dr. Wouters was former Assistant Rapporteur to the Water Resources Committee of the International Law Assocation, has been elected to the Board of Directors of the International Water Resources Association, named Advisor to the Water Resources Advisory Group to Suez-Lyonniase des Eaux, Advisor to the TARM initiative (Transboundary Aquifer Resources Management) and is an active member of the UNESCO/WMO-sponsored HELP (Hydrology for the Environment, Life and Policy). Dr. Wouters is series editor of the Kluwer Law International book series, "International and National Water Law and Policy". Dr. Wouters has provided extensive expert advice on water law and policy matters to a number of countries, international organisations and private organisations.

Mr. Mike Young
CSIRO Land and Water

DEFINING TRADABLE WATER ENTITLEMENTS AND ALLOCATIONS: A ROBUST SYSTEM

Robust systems are characterized by a capacity to recover gracefully from the whole range of exceptional inputs and situations in a given environment. They have a connotation of elegance.

This paper will highlight the importance of separating the different elements of any tradable property entitlement and allocation system into its component parts and the opportunity this gives to put in place arrangements that can be expected to last.

Often, considerable reform is required to put in place robust reforms. Using examples from Australia, this paper will highlight the importance of sequencing implementation of the reforms necessary to put robust systems in place.

Robustness is achieved by using three rather than one instrument to allocate water and control use, and coupling these with three separate planning instruments.

Mike Young is a Chief Research Scientist with CSIRO Land and Water and is a Fellow of the Academy of Social Sciences and past-President of the Australia and New Zealand Society for Ecological Economics. He specialises in the design of property-right systems and resource accounting. Mike was awarded the Centenary Medal in 2003 for outstanding service through environmental economics. He is a member of the South Australian Government’s Sustainability Roundtable.

Steve Dovers & Daniel Connell
Centre for Resource and Environmental Science, ANU

Sustainable Water Management: Comparative perspectives from Australia, Europe & the US