The Challenge of Sustainability
New Horizons in Environmental and Energy Law series
Chapter 7: Water Entitlements
INTRODUCTION Whether or not a legal system recognises or creates a right to water, much clearly depends upon how a legal entitlement to water may be either acquired or granted. In other words, it is a function of the legal system, particularly a national legal system, to enable rights in relation to water – or, more precisely, enforceable water entitlements – to be acquired or to be granted or, more directly, for water itself to be appropriated or allocated. A legal system may permit rights in relation to water to be acquired or water appropriated simply as a matter of law without recourse to any bureaucratic procedures. Alternatively, a legal system may prohibit either generally or in particular sets of circumstances either the acquisition of rights in relation to water or the appropriation of water without the involvement of the state or an agency of the state in one form or another. These arrangements are, in other words, a rules based system for acquiring rights or a regulatory system for granting rights: a simple but critical distinction that goes to the very doctrinal foundations of any system of water resources governance. Historically, water entitlements have been based originally on a set of rules and then on an evolving system of bureaucratic grants. But this is an oversimplification. Any system of water resources governance is a combination of both rules and administrative regulation. This is because a system of enforceable water entitlements cannot ignore the nature of water and of the hydrological cycle...
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