A2.1 Water rights
A water right is the right to use water – not to own it. Good water law recognises and acknowledges existing uses and rights, including customary uses and aboriginal entitlements. At the same time, good water law is flexible enough to permit reform in response to technological change and socio-economic need.
In most countries, water (or at least its most important sources) belongs in the public domain, reflecting the notion of water as a public good. Where water use rights are granted to private individuals or corporations, they may be protected under the provisions of national, state, or provincial constitutions. Water rights may be closely linked to land rights, and entitlements may also be held on the grounds of gender or other social attribute, with implications for the transfer of rights and enforcement of water legislation.
Under most water laws, a right may be held or maintained only when there is effective use. This often reflects the scarcity and value of the water resource and is linked to concerns about the risk of vesting an absolute monopoly on a single individual. Law may specify that use is beneficial as well. The tenets of effective and beneficial use are:
Water law will often rank uses for allocation of water at times of scarcity or in case of competing applications, e.g. water for basic human needs and/or ecosystem protection. Legally established water rights allow the development and conservation of water resources, provide collateral or assets for obtaining credit, and recognise existing social and economic relationships. In rural areas, legislation may allow responsibility for the operation, maintenance and management of irrigation systems to be transferred to farmers.
As water becomes scarcer, the transfer of water rights becomes important. Water law increasingly accepts transfers, under prescribed conditions. A water rights registry helps to ensure the stability of water rights and the transfer of title, but adequate transitional mechanisms should also be developed to avoid socio-economic instability.
The allocation of water rights per se may or may not strengthen IWRM. Reform may be needed if water rights are assigned inequitably, or do not reflect the value of water (C7.5), or the management role of specific social groups or gender.
Key factors for good water law include: