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Edited by Erkki J. Hollo

Scarcity of water, floods and erosion caused by climate change have made the management of water resources a challenge to national and international actors worldwide. States have also initiated water projects to improve social welfare, often with significant impacts on the environment. This book combines close analysis of the legal structures of water rights with consideration of the modes of water management projects to illustrate current water-related problems in terms of practical solutions in a global context.
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Liping Dai, Marleen van Rijswick and Bram Schmidt

In times of increasing water scarcity, growing populations and economic development, the allocation of water use rights becomes an issue that needs further discussion. Transparent allocation of water rights is crucial to a sustainable, balanced and equitable use of water; to guarantee the right to water; and to contribute to the achievement of the United Nations’ sustainable development goals. We discuss the allocation of water use rights at the international, regional and national levels from a comparative perspective. At the national level, we make a comparison of water allocation in Indonesia, Kenya, The Netherlands and China. All countries show a development towards more sustainable and equitable water use as well as a more balanced and equitable allocation of water use rights. Improving participation and a mix of policy instruments enables a transparent balancing of interests. Allocation policies seem to be a step to which all countries should give more attention. Keywords: Chapter 6 (Dai and others): Allocation of water rights, UN Watercourses Convention, conflict resolution, stakeholder involvement, river basin, Indonesia (Brantas basin), water allocation

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Tuomas Kuokkanen

The chapter discusses how international law has sought to resolve, regulate and manage problems and relationships relating to the protection and utilization of waters. The chapter distinguishes four dimensions: subjective, spatial, temporal and material. Issues relating to watercourses should not be dealt with in a vacuum but are surrounded by a web of tensions, conflicts and relationships. The use of different dimensions helps to determine where the essence lies, what possible trade-offs and benefits are available, what kind of conflicts of interest exist and whether any synergies or interlinkages can be identified. The chapter then explores different tools and methods provided by international law. In this regard, three broad themes are discussed: dispute settlement, regulations and management. These approaches reflect three contextually different but interlinked ways of dealing with such issues. However, while such tools exist at a general level, their functionality depends on the specific circumstances at hand. Keywords: Chapter 9 (Kuokkanen): International water law, transboundary watercourses, dispute settlement, Harmon doctrine, case law, sustainable development

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Ezekiel Nyangeri Nyanchaga

Kenya’s water history presents unique interrelationships and challenges in water rights. It is a transition from customary law to written law within the realm of the social and economic disparities of colonialism. The interests of the local Africans and those of European settler farmers in access to water in most cases conflicted owing to the different levels of their needs. Njoro Kubwa, an area with water within a relatively semi-arid area on the Kenyan coast, is the subject of water rights conflict between indigenous communities and European settlers. The laws guiding water rights acquisition were already established in 1947 and the process was long and elaborate. The process of acquiring a wayleave license was long, tedious and arduous. Water being a precious and a rare commodity, especially in the dry coastal area, had to be allocated in a manner that was not only just and equitable, but also seen as such. Keywords: Chapter 5 (Nyanchaga): Customary African law, Njoro Kubwa Springs conflict, Native Reserve Land, water abstraction, canal excavation, water permit

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Hennie Coetzee and Louis J. Kotzé

South Africa does not have a single, integrated law that comprehensively provides regulation of all water aspects during the life cycle stages of shale gas development (SGD). Two published reports on water related aspects of SGD in South Africa seem to agree on a number of main findings. One of the findings relates to the need for alignment between different pieces of legislation. The findings of (i) the Strategic Environmental Assessment (SEA) and (ii) the Report on South Africa’s Technical Readiness for SGD seem to indicate that further enhancements to the regulatory framework are likely. There is currently no intergovernmental agency or body to facilitate and enable cooperative governance and the alignment of different laws and agencies. We believe government would be well-advised to establish such an institution as soon as possible so that it can benefit from an integrated and holistic approach to water-SGD governance. Keywords: Chapter 15 (Coetzee and Kotzé): Hydraulic fracturing, shale-gas development (SGD), water cycle of SGD, water acquisition, chemical mixing well injection, water resources of South Africa

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Sharon Mascher and Deborah Curran

Based on the natural history of property rights, in the face of water scarcity and as demand increases, one might expect to see the articulation of comprehensive individualized property rights to allocate access to this resource. However, because of the special nature of the water resource, modern water allocation regimes must balance the desire to provide security to water users and create incentives for efficiency with the need to manage water in a manner that incorporates public values for ecological health. In so doing, these regimes create use entitlements or rights that possess characteristics of private property while incorporating mechanisms to allow for adaptive management of the water resource. Using modern Australian and Canadian water law, this chapter explores the question of whether the result can be characterized as private rights. Keywords: Chapter 7 (Mascher and Curran): Water allocation, private property, right to use water, adaptive management, Australian water regimes, Western Canadian water law regimes

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Liping Dai

China has witnessed continuous high economic growth during the last three decades. The rapid economic growth and urbanization are ushering in a new phase of continuous pressure on the environment. Water pollution has become a serious problem in the country. The Central Government has developed a number of new instruments to tackle different water pollutants and pollution sources in order to protect and improve its water quality. This chapter analyzes the regulatory framework applied in water quality management in China and aims to provide an overview of Chinese approaches in this regard. Keywords: Chapter 13 (Dai): Water quality management, Chinese constitution, environmental protection, water-related quality standards, water pollution prevention, action plan

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Antti Belinskij

This chapter discusses how the principle of cost recovery is reflected in international, EU and Finnish water law. The key questions are: 1) What kind of legal requirements are set for the recovery of costs for water uses at different levels of law? and 2) What kind of measures must be taken to meet those requirements? The manifestations of the principle of cost recovery for water uses differ significantly at the international, EU and Finnish levels of water law. International law does not recognize such a principle and Finnish law relates it to water and wastewater services, but the EU Water Framework Directive requires water pricing to recover the financial, environmental and resource costs for a wide range of water uses including own uses. Despite its shortcomings, the broad water pricing obligation of the Water Framework Directive represents the first serious attempt to implement the polluter pays principle in Finnish water policies. Keywords: Chapter 8 (Belinskij): Cost recovery, UN Watercourses Convention, ECE Water Convention, EU Water Framework Directive, water services, Finnish system

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Pekka Vihervuori

For historical reasons, national property law systems for water areas vary considerably, both in comparison to each other and regarding their relation to land cadastral systems. Also, the natural characteristics and significance of various forms of ownership on the one hand and other rights on the other hand have their impact on property law and, consequently, on water management and water-related permit systems. The overall picture of Finnish law shows a special combination of the different starting-points and their interaction. Public law and private law are strongly intertwined, although the first-mentioned dominates. Special attention is paid to the EU Water Framework Directive and its implementation in planning and, particularly, in relevant permit contexts. Keywords: Chapter 3 (Vihervuori): Ownership of water areas, public domain, property law, Finnish water law, state ownership, water management permit

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Itzchak E. Kornfeld

This chapter discusses a transboundary dispute adjudicated by the United States Supreme Court, Kansas v. Colorado. It involved a problem that has bedeviled the American west for over one hundred years: the apportionment of river water, mostly for irrigation purposes in a desert to semi-desert environment. Kansas v. Colorado demonstrates the competing interests of sovereignty, in the guise of water allocation between the state-litigants over water. The dispute also demonstrates the lengths to which states situated in the arid west will go for a greater share of the existing pool of water. The Court’s solution was an equitable remedy: equitable apportionment, which weighs each sovereign’s use or development of the transboundary stream. Accordingly, no sovereign, whether an upstream or downstream riparian, has the right to destroy or severely impact the interest of other riparian states. This appetite for the allocation of water is not limited to the United States. Keywords: Chapter 11 (Kornfeld): Equitable allocation of water, state sovereignty, dispute settlement, Kansas v. Colorado case, water basin, riparian rights