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Article

Michael Hanemann

Water marketing and property right reform are intertwined. Water markets are advocated as a solution for water scarcity, but changes in water rights are often required if the scope of water marketing is to expand. This is true in many countries, including (but not limited to) the United States and Australia. The focus here is on the United States. So far, water marketing in the Western United States is not producing long-run reallocation on the scale expected. The chief impediment is the complexities in existing water rights. An important distinction is between a property right to extract water and put it to use versus a contractual right to receive water from a supply organization. In the United States, the property right to water is a unique form of property. Unlike land, it is a right of use, not ownership; the quantity afforded by the right is incompletely specified; and the ability to transfer it is constrained by the obligation to avoid harm through the externality of return flows and also by unreliable historical records of rights. These constraints are often relaxed for short-term transfers (leases) of a property right lasting only a year or two. Also, these constraints generally do not apply to a contract right to receive water. Thus, most of the surface water transferred in the United States is either contract water moving within supply system boundaries or short-term leases of appropriative rights. These transfers tend to provide short-run flexibility for water users rather than long-run reallocation. For more significant long-run reallocation of water, some modification of the property right to water is essential. Devising a politically acceptable way to make the needed changes is the ultimate constraint on water marketing.

Article

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.

Article

Water scarcity has long been recognized as a key issue challenging China’s water security and sustainable development. Economically, China’s water scarcity can be characterized by the uneven distribution of limited water resources across space and time in hydrological cycles that are inconsistent with the rising demand for a sufficient, stable water supply from rapid socioeconomic development coupled with a big, growing population. The limited water availability or scarcity has led to trade-offs in water use and management across sectors and space, while negatively affecting economic growth and the environment. Meanwhile, inefficiency and unsustainability prevail in China’s water use, attributable to government failure to account for the socioeconomic nature of water and its scarcity beyond hydrology. China’s water supply comes mainly from surface water and groundwater. The nontraditional sources, wastewater reclamation and reuse in particular, have been increasingly contributing to water supply but are less explored. Modern advancement in solar and nuclear power development may help improve the potential and competitiveness of seawater desalination as an alternative water source. Nonetheless, technological measures to augment water supply can only play a limited role in addressing water scarcity, highlighting the necessity and importance of nontechnological measures and “soft” approaches for managing water. Water conservation, including improving water use efficiency, particularly in the agriculture sector, represents a reasonable strategy that has much potential but requires careful policy design. China’s water management has started to pay greater attention to market-based approaches, such as tradable water rights and water pricing, accompanied by management reforms. In the past, these approaches have largely been treated as command-and-control tools for regulation rather than as economic instruments following economic design principles. While progress has been made in promoting the market-based approaches, the institutional aspect needs to be further improved to create supporting and enabling conditions. For water markets, developing regulations and institutions, combined with clearly defining water use rights, is needed to facilitate market trading of water rights. For water pricing, appropriate design based on the full cost of water supply needs to be strengthened, and policy implementation must be enforced. An integrated approach is particularly relevant and greatly needed for China’s water management. This approach emphasizes integration and holistic consideration of water in relation to other resource management, development opportunities, and other policies across scales and sectors to achieve synergy, cost-effectiveness, multiple benefits, and eventually economic efficiency. Integrated water management has been increasingly applied, as exemplified by a national policy initiative to promote urban water resilience and sustainability. While economics can play a critical role in helping evaluate and compare alternative measures or design scenarios and in identifying multiple benefits, there is a need for economic or social cost–benefit analysis of China’s water policy or management that incorporates nonmarket costs and benefits.

Article

Indigenous rights to water follow diverse trajectories across the globe. In Asia and Africa even the concept of indigeneity is questioned and peoples with ancient histories connected to place are defined by ethnicity as opposed to sovereign or place-based rights, although many seek to change that. In South America indigenous voices are rising. In the parts of the globe colonized by European settlement, the definition of these rights has been in a continual state of transition as social norms evolve and indigenous capacity to assert rights grow. From the point of European contact, these rights have been contested. They have evolved primarily through judicial rulings by the highest court in the relevant nation-state. For those nation-states that do address whether indigenous rights to land and water exist, the approach has ranged from the 18th- and 19th-century doctrines of terra nullius (the land (and resources) belonged to no one) to a recognized right of “use and occupancy” that could be usurped under the doctrine of “discovery” by the conquering power. In the 20th and 21st centuries the evolution of the recognition of indigenous rights remains uneven, reflecting the values, judicial doctrine, and degree to which the contested water resource is already developed in the relevant nation-state. Thus, indigenous rights to water range from the recognition of cultural and spiritual rights that would have been in existence at the time of European contact, to inclusion of subsistence rights, rights sufficient for economic development, rights for homeland purposes, and rights as guardian for a water resource. At the forefront in this process of recognition is the right of indigenous peoples as sovereign to control, allocate, develop and protect their own water resources. This aspirational goal is reflected in the effort to create a common global understanding of the rights of indigenous peoples through declaration and definition of the right of self-determination articulated in the UN Declaration on the Rights of Indigenous Peoples.