Water allocation

A basic component of the institutional framework for water resources management is the water allocation system that defines ownership of water or rights to use the resource. T h e importance of the allocation process arises from a combination of the large n u m b e r of water-using interests possible and the ease with which the impacts of each individual water-use activity can be transmitted through hydrologie processes to other water uses. This high potential for conflict creates a need for a system of rules that provides guidance for the avoidance of conflict and principles for resolving conflicts that occur.

A major purpose of a water allocation system is to assist in achievement of water management objectives by facilitating water uses m a k i n g the greatest contribution to those objectives. Because of the need for certainty of water availability in planning and implementing investments in water-use activities, the water allocation system must provide a legally secure right to the use of water under clearly defined conditions. Because of the tendency for each water use to displace other uses and produce environmental h a r m under conditions of scarcity, the allocation system must attempt to prevent use of water in excess of that reasonably necessary for each application and otherwise seek to control undesirable adverse effects.

Because of the need for shifts in water use from less to more beneficial applications, the allocation system must m a k e provision for termination of existing rights under certain conditions, for establishment of n e w rights, and for modification and transfer of existing rights to allow water-use changes. A water allocation system therefore must represent a careful balance between the concurrent needs for security and flexibility in water-use practices. T h e inherent conflict between these two dictates is a primary source of the complexity often exhibited by water allocation systems (Trelease, 1976).

The importance of water allocation law increases, as water d e m a n d s increase. Under conditions of water abundance where all d e m a n d s can be satisfied without conflict, such law is relatively unimportant. But the potential for conflict even under conditions of general abundance results in development of at least simple water allocation procedures at an early stage of socio-economic development. L a w governing allocation procedures generally evolves toward more sophisticated

forms as water-use conflicts increase in frequency with increasing d e m a n d s for the services of water.

While modernization of water allocation systems is a basic part of the growth of national water m a n a g e m e n t capabilities, such modernization can be controversial. Water-use customs are a fundamental part of the socio-cultural framework, and attempts to modify customary allocation procedures are likely to be met with resistance. However, customary practices m a y be incompatible with intensive m a n a g e m e n t programs and activities, and modernization of the allocation system is likely to become essential at s o m e level of socio-economic development. The tendency to allow customary practices and alternative allocation systems to continue to exist in parallel with newly adopted controls should be resisted and existing rights integrated into a single allocation program (Teclaff, 1979, p. 887).

The form of water allocation law varies substantially a m o n g nations (Cano, 1977, p. 3.4) due to variation in such basic factors as ownership of natural resources.

In the case of public ownership and development of resources, the water allocation system must apportion available supplies a m o n g various public enterprises competing for a limited supply. Conflicts m a y occur between alternative offstream uses such as irrigation and industrial use and m a y involve competition between offstream uses and instream uses such as maintenance of fisheries. T h e balance to be achieved between offstream and instream uses in a basic water policy issue, with the water allocation system a primary policy implementation mechanism.

The same types of conflicts a m o n g water uses are possible in nations where water is subject to private property interests. In this case, the water allocation system functions by defining the nature of the property interests in water and establishing limitations o n the exercise of private rights recognized. The nature of the property interest recognized in water (and in land to a significant extent as well) is a basic component of the institutional framework within which water management takes place. D u e to the nature of water, associated property rights generally are less absolute than in the case of fixed-location resources. Such rights are unlikely to extend to the ownership of water while part of a natural hydrologie system but are usually limited to use of the resource under prescribed conditions. In fact, water tends to be classified as a public resource subject to limited private rights even in those nations with a tradition of private resource ownership.

Beyond considerations of national political structure, water allocation systems also vary with respect to other factors, including hydrologie scope, administrative approach, and the basis and scope of individual water rights.

5.1 Hydrologie scope of the allocation system

T h e primary question concerning the hydrologie scope of a water allocation system is the extent to which it encompasses all interrelated phases of the hydrologie

cycle. While some allocation systems apply relatively comprehensively to all water without regard to source, application of separate allocation systems to different phases of the hydrologie cycle, often embodying significantly different allocation principles, is a c o m m o n approach. Frequently used legal classes include streams and lakes, unconfined surface runoff, and groundwater.

T h e physical unity imposed by interactions of the hydrologie cycle suggests that a water allocation system most logically should be based on a comprehensive view of the water resource (Cano, 1977; Trelease, 1977, p. 396). This approach provides a basis for recognition of interactions between water in different sources and is compatible with the concept of integrated water management.

A n especially useful application of the comprehen-sive approach is conjunctive management of surface and groundwater. At a m i n i m u m , hydrologie interactions between surface and groundwater should be considered in all management decisions because of the potential for unintended adverse impacts. In addition, coordinated use of surface and groundwater supplies m a y provide a least-cost water supply option in some situations. Groundwater can be used to supplement surface water supplies during periods of low stream flow, thereby reducing or eliminating the need for costly surface reservoirs. Under appropriate conditions, groundwater could be deliberately overdrawn during dry periods and allowed to recover (or perhaps be artificially recharged) during periods of high surface water availability (Teclaff, 1979, p. 906).

T h e comprehensive approach, while providing for such coordination a m o n g water sources, can also provide flexibility for consideration of special issues unique to a particular source of water. For example, special allocation rules different from those generally applicable could be applied to a hydrologically isolated groundwater basin where special management needs exist.

T h e approach to water allocation based on separate treatment of water from different sources poses inherent obstacles to integrated water management. Consider-ation of hydrologie impacts of use from one source on another source (e.g., groundwater pumping that affects a surface water body) is impeded by a jurisdictional boundary. Similarly, a tendency will exist

for other water-use considerations to be affected by limits placed on the perspective of decision makers.

Overcoming the potential distortions in management decisions resulting f r o m limited m a n a g e m e n t perspectives requires a significant coordination effort.

Nevertheless, the tendency to isolate problems and address them within limited boundaries is a strong influence toward compartmentalizatión of the water resource, and allocation by water source is a frequently used a p p r o a c h under current institutional arrangements.

5.2 Administrative approach

The administration of a water allocation program can take several forms. Three basic issues define the approach taken: (1) the level of government responsible

for the water allocation function, (2) whether the allocation function should be judicial or administrative in nature, and (3) if the administrative approach is adopted, the selection of the particular agency to exercise allocation responsibilities.

T h e issue of assigning the allocation function a m o n g levels of government is important in a federal political system and cannot be resolved independently of general legal principles for division of governmental responsibilities. T h e need for a broad perspective and coordination with other elements of the national water management program m a y suggest a need for the allocation function to be exercised at the national level.

T h e need for sensitivity to water resource conditions and water demands that vary with geographic location suggest allocation at a lower level. The importance of flexibility to respond to local or regional conditions increases with increasing variability of conditions relating to water use within national boundaries. Should the allocation function be assigned to a lower level, however, coordination mechanisms for considering relationships between water allocation and other components of the water m a n a g e m e n t program exercised by the national government are necessary.

Constraints generally have to be imposed on the allocation authority of the lower level of government to accommodate exercise of national powers with direct impact on water allocation decisions.

T h e question of whether the allocation function should be performed through judicial proceedings or by an administrative body often becomes a primary issue in attempts to modernize traditional water allocation systems. At lower levels of socio-economic development, water allocation decisions tend to be m a d e within general-purpose adjudicatory procedures rather than by specialized allocation processes.

Customary practice tends to be adopted as a set of formal rules that continue to evolve within the context of individual conflicts. This approach operates effectively and at low cost as long as the combination of available water supply and d e m a n d is such that relatively little conflict occurs.

Traditional approaches based on general adjudica-tory procedures m a y become inadequate with socio-economic growth and increased water-use conflict. T h e need for improved conflict resolution, especially the need to incorporate principles of scientific m a n a g e m e n t into the allocation process, and the need to coordinate allocation with other aspects of m a n a g e m e n t produce an incentive for conversion to an administrative approach. Such conversion generally requires adoption of legislation that establishes procedures for inventory of existing water use, quantification of water rights, and establishment of procedures for continued recognition of existing rights, within the administrative allocation program. A substantial trend toward adoption of water allocation legislation and creation of administrative allocation procedures exists (Teclaff,

1979).

T h e decision to adopt the administrative approach requires resolution of the issue of appropriate location of the allocation function within the overall water management program. Several existing departments of government with water m a n a g e m e n t responsibilities

m a y be appropriate choices. However, the existence of other m a n a g e m e n t responsibilities can create conflicts of interest if the other responsibilities involve water resource use and development activities.

Avoidance of such conflicts requires location of the allocation responsibility with an agency not committed to a narrow water resources development mission.

Although avoidance of conflict of interest m a y suggest that administration of the water allocation program be separated from water development programs, the allocation program must be closely coordinated with other component s of management.

Since the allocation function is a primary mechanism for achieving the entire range of water m a n a g e m e n t objectives, linkages must exist with all components of the m a n a g e m e n t program. Close ties with the water quality protection program are especially important because of interactions between the quantity and quality aspects of water.

5.3 Nature and scope of individual water rights

Water rights represent an assignment of specific legal interests to individual persons or organizations (either public or private) for use of water under prescribed conditions. Such rights define relationships a m o n g individual water users by establishing limits on the activities of each that m a y have adverse effects on the others. Water rights also define the relationship between the individual water user and the elements of the public interest in the water resource extending beyond those reflected in individual water rights. These broad elements of the public interest consist generally of instream water-use activities and natural environmental conditions n o w widely recognized as important components of welfare. Water allocation is an important mechanism for protecting these interests since it provides an opportunity for prohibiting or restricting adverse water use.

In order for proper consideration to be given to relationships a m o n g water-use activities, an allocation system should apply to all major water uses. Exemption of small uses without substantial hydrologie effect is justified on the basis of reducing administrative burdens, but exemption of significant uses undermines the ability of the allocation program to control conflict.

Exemption is sometimes employed as a means of showing preference for particular categories of water use, but such preferences should be recognized within the allocation program rather than through exemption of the preferred use.

Preferences can produce difficulties even w h e n employed within the allocation system. For example, preferences for domestic use (generally the highest preference use) can cause problems w h e n the domestic class is interpreted to m e a n all public supplies since public supplies in urban areas encompass m a n y types of use and attain large magnitudes. Because of iversity of use within the public supply category, blanket application of the domestic preference can result in distortions in the original purpose of establishing preferences. Categorical preferences of this type tend

to reduce allocation flexibility and should be employed with care (Teclaff, 1979, p . 890).

Individual water rights established through an allocation system vary in form a m o n g nations. Under s o m e political systems, water rights will be held as private property rights; in other cases, they will be held primarily by public organizations. But aside from differences in program details resulting from such distinctions a m o n g nations, all water allocation programs confront the same general issues concerning creation of water rights, definition of the scope of such rights, and continuing supervision of such rights over time.