Increased water variability is one of the most pressing challenges presented by global climate change. A warmer atmosphere will hold more water and will result in more frequent and more intense El Niño events. Domestic and international water rights regimes must adapt to the more extreme drought and flood cycles resulting from these phenomena. Laws that allocate rights to water, both at the domestic level between water users and at the international level between nations sharing transboundary water sources, are frequently rigid governance systems ill-suited to adapt to a changing climate. Often, water laws allocate a fixed quantity of water for a certain type of use. At the domestic level, such rights may be considered legally protected private property rights or guaranteed human rights. At the international level, such water allocation regimes may also be dictated by human rights, as well as concerns for national sovereignty. These legal considerations may ossify water governance and inhibit water managers’ abilities to alter water allocations in response to changing water supplies. To respond to water variability arising from climate change, such laws must be reformed or reinterpreted to enhance their adaptive capacity. Such adaptation should consider both intra-generational equity and inter-generational equity. One potential approach to reinterpreting such water rights regimes is a stronger emphasis on the public trust doctrine. In many nations, water is a public trust resource, owned by the state and held in trust for the benefit of all citizens. Rights to water under this doctrine are merely usufructuary—a right to make a limited use of a specified quantity of water subject to governmental approval. The recognition and enforcement of the fiduciary obligation of water governance institutions to equitably manage the resource, and characterization of water rights as usufructuary, could introduce needed adaptive capacity into domestic water allocation laws. The public trust doctrine has been influential even at the international level, and that influence could be enhanced by recognizing a comparable fiduciary obligation for inter-jurisdictional institutions governing international transboundary waters. Legal reforms to facilitate water markets may also introduce greater adaptive capacity into otherwise rigid water allocation regimes. Water markets are frequently inefficient for several reasons, including lack of clarity in water rights, externalities inherent in a resource that ignores political boundaries, high transaction costs arising from differing economic and cultural valuations of water, and limited competition when water utilities are frequently natural monopolies. Legal reforms that clarify property rights in water, specify the minimum quantity, quality, and affordability of water to meet basic human needs and environmental flows, and mandate participatory and transparent water pricing and contracting could allow greater flexibility in water allocations through more efficient and equitable water markets.
Rhett B. Larson
Cathy Rubiños and Maria Bernedo Del Carpio
Adequate water governance is necessary for the world’s sustainability. Because of its importance, a growing literature has studied ways to improve water governance, beginning in the early 2000s. Institutions, which refer to the set of shared rules, codes, and prescriptions that regulate human actions, are a particularly important element of sustainable water governance. Evidence shows that to design institutions that will generate sustainable economic, ecological, and cultural development, it is necessary to consider ecosystems and socioeconomic-cultural systems as social-ecological systems (SESs). In the past, practitioners and international agencies tried to find the government-led panaceas, but this search has been largely unsuccessful. Current views support efforts to move towards addressing complexity (e.g., Integrated Water Resources Management), and search for the fit between the institutional arrangements and SESs’ attributes. The literature on institutional fit in SESs encourages planners to design institutions by carefully considering the defining features of the problems they are meant to address and the SES context in which they are found. This literature has been developing since the 1990s and has identified different types of misfits. A comprehensive fitness typology that includes all the different types of fitness (ecological, social, SES, and intra-institutional fit) helps organize existing and future work on institutional fit and provides a checklist for governments to be used in the problem-solving process for increasing fitness. The water governance and institutional fitness literature provide examples of management practices and mechanisms for increasing institutional fit for each fitness type. Future research should focus on improving the methodologies to measure different types of fit and testing the effect of introducing fit on SES outcomes.
Stephen Foster and John Chilton
This chapter first provides a concise account of the basic principles and concepts underlying scientific groundwater management, and it then both summarises the policy approach to developing an adaptive scheme of management and protection for groundwater resources that is appropriately integrated across relevant sectors and assesses the governance needs, roles and planning requirements to implement the selected policy approach.