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The Integrated Regulation Of Water Resources Management In England And The European Union

Congress: 2015
Author(s): William Howarth

University of Kent1



Keyword(s): Sub-theme 15: Water law,
Oral:
Abstract

This paper recognises the endorsement of Integrated Water Resources Management (IWRM) as a global imperative for water sustainability, but notes and investigates the lack of progress towards implementing this in English national law and in European Union water legislation. Whilst the general criticisms of IWRM are acknowledged, the need for greater coherence in water regulation is accepted. Specifically, there is scope for a more consistent regulatory approach to address extreme hydrological events such as droughts and flooding. The management of water security and flood risk have common regulatory features in addressing natural (or semi-natural) hydrological events in a preventative or precautionary way. In doing so, it is argued that 'naturalness' is a key factor in providing appropriate, enduring and sustainable legal responses.

International recognition of IWRM, as the guiding imperative for sustainable water resources management, may be traced back to Chapter 18 of Agenda 21 from the United Nations Rio Conference on Environment and Development in 1992.1 However, it did not gain a generally accepted understanding until the Global Water Partnership suggested the definition: 'a process which promotes the co-ordinated development and management of water, land and related resources, in order to maximize the resultant economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems'.2Criticisms of the inconsistency of the overall concept of IWRM have been raised, 3but the level of endorsement by national governments, and internationally, is indicative of the widespread support that the concept has gained.4As a matter of logic, it is difficult to argue against the water management option that seeks to secure the greatest long-term benefit for humanity, as measured in aggregate economic, social and environmental terms.As a matter of practice, however, the concept of IWRM is seriously elusive in assessing costs and benefits and determining what way of managing, or regulating, water is actually most beneficial.

The body of the paper examines and evaluates progress in the implementation of IWRM in EU and English Law.As regards EU law, the centrally important Water Framework Directive (2000/60/EC) on closer inspection, reveals itself as a water quality measure, with limited relevance to water quantity concerns such as security of water supplies or the reduction of flooding risk.Although some inroads into water quantity management are made under the European Commission's 2007 Communication on Water Scarcity and Droughts5 and the Flood Risk Management Directive (2007/60/EC) the record of the EU in integrating water regulation is, at best, tentative and incomplete.The European Environment Agency has dawn attention to the problem of the quantitative status of water in EU law and called for a redefinition of 'good status' under the Water Framework Directive to incorporate a requirement for 'ecological flows' to provide sufficient water to meet ecological needs.6At best, integration is acknowledged as an overall objective, but actual EU measures to achieve regulatory integration of water management are seriously lacking.

In English water law, the picture of disintegrated water regulation is even more vivid. Despite a long history of laws relating to water management, the interrelationship between different, and competing, kinds of water use has not been adequately recognised in national law. National laws relating to water supply, water pollution, flood risk management, and other uses such as hydropower, irrigation, fisheries, navigation and ecological protection, alongside recreational uses, seem to have been adopted in relative isolation from one another, with surprising little recognition of the implications of one kind of water use for others. The idea of integrated regulation seems to be almost completely ignored in national law. This is particularly surprising in respect of recent legislative developments concerning sustainability in water security and flood risk management.

A useful illustration of the way of securing sustainability in water supply in England and Wales is provided by the Water Act 2003. This facilitates a system of water resources management planning, which requires water undertakers to show how water supply obligations are to be met over the following 25 years. The implementation this has placed water company proposals to establish major water infrastructure projects such as reservoir construction under intense public scrutiny.The outcome of this regulatory process is to show that, in economic, social and environmental terms, major infrastructure projects may not be the most sustainable way of securing water supplies.7

A possible counterpart of this, in respect of managing water in excess, is the Flood and Water Management Act 2010, which introduces a risk-based approach to flooding and coastal erosion. The recharacterisation of the legal response to the flooding problem in terms of the management of risk carries with it the recognition that the alleviation of flooding at one location may only be achieved by increasing risks elsewhere, and that defending land from flooding may not always be a sustainable option. In many instances construction of major embankments may have the consequence of exacerbating downstream flooding problems and/or passing excessive maintenance costs to future generations.

Although dealing with different ends of the spectrum of hydrological events, the recent national legislative responses to water resources planning and flood risk management share the realisation that sustainable water management does not always involve ever-greater infrastructure provision (particularly reservoirs and flood defence embankments). Often, sustainability involves the adoption of a 'naturalisation' approach to water management, seeking the least intrusive solution to water resources management challenges.On this, the way forward may lie in adopting regulatory approaches that seek to reduce flooding and to avoid water shortages by retention measures which seek to restore natural water hydrological patterns through 'slowing the flow'.8

Although IWRM may have gained international recognition as the guiding concept for sustainability in water management, the progress of the idea in EU and English water legislation is seen to be limited. Arguably, this may be because the call for 'integration' may be uninformative in resolving competing priorities in water management. The present argument is that 'naturalisation' should be seen to have a greater role in sustainable water quantity management. 1Available at http://sustainabledevelopment.un.org/content/documents/Agenda21.pdf. 2 Global Water Partnership – Technical Advisory Committee, Integrated Water Resources Management: Background Paper 4 (Stockholm 2000). 3 See, for example, A. K. Biswas, ‘Integrated Water Resources Management: Is it working?’ (2008) 24(1) Water Development Management 22 4UN Water Report The Status Report on the Application of Integrated Approaches to Water Resources Management (UN 2012). 5 European Commission, Communication on Water Scarcity and Droughts COM (2007) 414 (and subsequent follow-up reports). 6 European Environment Agency, European Waters - Current Status and Future Challenges - a Synthesis EEA Report No.9/2012. 7W. Howarth, 'Planning for Water Security' (2012) 4 Journal of Planning and Environment Law 357 8WWF Scotland, Slowing the Flow: a Natural Solution to Flooding Problems (2007) available at http://assets.wwf.org.uk/downloads/slowingflow_web.pdf

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