Liquid Relations: Contested Water Rights and Legal Complexity

Chapter 10: Routes to Water Rights

215 1 bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb 10 Routes to Water Rights BRYAN BRUNS As water becomes increasingly contested, water users are increasingly affected by the actions of strangers with whom they have few other links besides sharing the use of a common resource. The success of attempts to resolve conflicts and coordinate collective action in water use depends, among other things, on the ability to find efficient solutions to problems of collective action. If reaching agreement is time-consuming and difficult, and agreements difficult or impossible to enforce, then water allocation is unlikely to be effective, or to occur only through the unilateral imposition of state authority rather than arising from agreement among users. Changes in water resources management are more likely to succeed if new institutional arrangements are efficient in terms of the information, time, expenses, and other resources required. This chapter explores some aspects of how the transactions costs of institutions for water management might be optimized through better understanding of, and working with, legal pluralism in water governance. Developing Water Rights Clearer recognition of water rights in one form or another is required for all three major approaches currently advocated for improving water allocation institutions (Meinzen-Dick and Rosegrant ): first, clarifying agency allocations through more explicit contractual arrangements, for example, through service agreements for provision of bulk water supplies to irrigators’ organizations ; second, promoting markets for transferable water rights; third, facilitating development of self-governance institutions (organizations, forums, platforms, and so on) through which users and their representatives can manage water as common property. In irrigation reform, water rights have been acknowledged as important for enabling better governance, including manage- 216 BRYAN BRUNS ment transfer to local organizations (Burchi and Betlen ; Vermillion ). However, with the partial exception of Mexico, relatively little policy attention has been paid to how water rights can be integrated into irrigation reforms. Water rights and water governance can take many different forms. In their attention to rights in various forms, however, whether explicit in shares, turns, licenses, and so on, or implicit in distribution practices, approaches emphasizing the development of water rights can be contrasted with approaches that look at water allocation purely as a technical engineering exercise, as a means of maximizing economic productivity from a societal perspective, or as mainly a zero-sum political struggle over entitlements to assets. Instead, this chapter focuses on the development of rules for water allocation as a process of governance involving stakeholders who have mixed motives to both compete and cooperate concerning water, and constitute rules of the game regarding legitimate claims to water. Such rules furthermore take on a life of their own, with emergent properties that are not simply the solution to a technical or economic calculus nor merely an automatic reflection of the constellation of political and economic power (on the challenge of fostering locally appropriate forms of control and management, see also chapter ). Water users’ desire for security and interest in retaining access make changes in allocation likely to be a contested process, whereas the benefits from coordination and differences in needs provide strong inducements to cooperation . The difficulties of developing suitable institutions may be so large as to make it not worthwhile, especially if suitable infrastructure and other technical capacity is not available and opportunities for gains from trade in water are low. However, even when there are few potential gains from trade or these cannot be achieved, water users are still likely to be interested in ways to increase the reliability of their access to water. Legal Pluralism In looking at how water tenure institutions might be improved, this chapter builds on the insight that, for water governance as well as in other domains, a diverse combination of state and local laws, norms, and other forms of social ordering may perform much better than overreliance on centralized state law, in terms of criteria such as effectiveness, equity, and efficiency. Guillet () has argued that reliance on local institutions to handle most allocation and conflict resolution has characterized the evolution of water rights institutions in Spain. More generally, Ellickson () analyzed gaps between official legal doctrines and local practice, emphasizing the practical and theoretical advantages of relying on local knowledge and self-organization to optimize transaction costs and improve institutional performance. Government regulation that reflects and reinforces local norms and self-governance is likely to be far more successful than attempts to impose state rules at variance with local ideas and ROUTES TO...