Water

• Author: Alexandra Dapolito Dunn and Kirk Tracy
• Pages: 81-100

CHAPTER 6

Water

ALEXANDRA DAPOLITO DUNN AND KIRK TRACY

I. Introduction

The next war may well be over water, not oil.1 This speaks of the essential

nature of water to global society. Seventy percent of the Earth’s surface is cov-

ered by water; our bodies are 60 percent water.2 And yet there is a finite sup-

ply of water on Earth. Of all the water on the planet, less than 4 percent is

freshwater (most of which is frozen in glaciers or otherwise inaccessible).3 The

remainder is salt water, which supports many ecosystems but generally is not

fit for drinking or agricultural purposes. While desalination plants are on the

rise around the world,4 the process can be controversial due to its energy

intensity, high cost, ecosystem impacts, and waste stream management issues.5

Water law and regulation in most nations attempts to balance and man-

age many competing interests and uses for surface water and groundwater—

including human consumption, agricultural applications, recreational uses,

navigation, waste assimilation, and ecosystem support. Managing water

requires analysis and control of pollutant levels through modeling and mon-

itoring, study and management of instream flows and diversions, and assess-

ment of impacts to aquatic life and human health—often over decades. In

many nations, laws and regulations addressing human consumption of

water are public health oriented, while water resource and quality laws are

more focused on ecosystem health. As such, legal practitioners generally

must identify and become familiar with diverse systems, protocols, and gov-

ernmental authorities to fully embrace water law and regulation.6

This chapter sets forth foundational water law guideposts that will help

practitioners ask the right questions and identify legal and regulatory struc-

tures that define a nation’s approach to water governance. This chapter cov-

ers four broad topics in international water law: water quality, water quantity,

management and use, and water rights and equity. This chapter also lists the

key international laws and policies relative to water quality and quantity.

This chapter discusses both surface water and groundwater topics, with rec-

ognition that legal systems treat them separately based on historical, scien-

tific, administrative, and other factors.

81

II. Water-Quality-Based Approaches

to Water Governance

Many nations manage water in terms of its quality,7 and through water qual-

ity regulation the impacts on ecosystems and public health can be mitigated

and addressed. The quality of water is impacted by a variety of pollutants,

the most common of concern being sediment,8 nitrogen and phosphorus,9

pathogens,10 toxics, bioaccumulatives,11 and synthetics.12 The types of pollut-

ants most likely to be found in a nation’s waters, or those pollutants most

likely to adversely impact humans or the aquatic ecosystem, drive the

method of regulation. Regulatory approaches may focus on the pollutant(s),

the sources and industries most likely to discharge them, special require-

ments to protect high-quality waters or unique regional or national water

resources, or a combination of these and other factors.

Some of the primary approaches to protecting water quality are the use

of prohibitions, permitting, and liability. For example, under the United

States’ Clean Water Act (CWA), all discharges of pollutants to waters of the

United States are prohibited unless authorized via a permit that delineates

permissible discharges and related conditions. The system is implemented

via a cooperative federalism approach where states are delegated the federal

program and carry it out under state law that mirrors the federal law—and

that can be more stringent.13 The U.S. system combines strict liability with an

authorization mechanism. Another approach is a non-permitting-based lia-

bility system. Legislation in China in 2008 established individual liability for

companies and company officials for water pollution and toxic spills. The

law shifted economic liability for actual damage and cleanup costs to corpo-

rate polluters who previously would have faced only administrative penal-

ties, which were largely unrelated to the severity of the pollution.14 This

Chinese law follows the polluter pays principle, a widely accepted doctrine

that puts liability for pollution on the entity emitting the pollution into the

environment; it is one of the primary principles of environmental law in the

European Union.15 However, recent studies and examples have shown that

the polluter pays principle alone has only had a slight impact on pollution

behaviors. Instead, alternative pollution control approaches, including the

use of a combination of methods (e.g., beneficiary pays, subsidies, and tar-

geted enforcement), should be—and are being—considered.16

Another fundamental guidepost in the water quality area is the state

(subnational)/federal (national) relationship. For example, in the United

States, the CWA’s water quality programs are driven by a careful balance

between state and federal authorities. In Australia, the Commonwealth has

passed national legislation and developed federally led programs, but suc-

cessful implementation of integrated water management programs has also

required state legislation.17 South Africa, however, has a more federally

focused approach, with a system grounded on a constitutional right to water.

In this system, the constitution more closely guides the actions of municipal

water services authorities and the judiciary has played a strong role in devel-

oping the normative jurisprudence of the country’s water laws.18 Mexico also

82 INTERNATIONAL ENVIRONMENTAL LAW