Environmental flows elements to support water legislation_MLB

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9 Νοε 2013 (πριν από 3 χρόνια και 10 μήνες)

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1



Introduction

During the past decades an unquenchable desire to use river flows for economic developments has
turned many riverine ecosystems in over
-
allocated and polluted water systems. The result has
been
increasing

environmental degradation in many of the world's major river basins
1
.

At this moment more
than 50% of the freshwater in the world ha
s

suffered from human intervention, and
it
is expected that in
the year 2025 th
is

number will go up to 70%
2
. This situation

uncover
s

the necessity to define a flow to
balance the ecological services provide by the river and maintenance of
th
e river features, this flow is
called
environmental flow
3
.


Environmental flows

can be defined

as

the amount of water left in the river t
o continue providing the
services from the water ecosystem and maintain the integrity of the river
4
. The aim of the
environmental flow is keep as much as possible the natural flow pattern along the river so that people,
animals, and plants can continue usi
ng the river resources
5
.

The concept has
been recognized

at many
international for
a

(such as the

Brisbane Declaration of Environmental Flows

which defines
them

as the
‘quantity, timing and quality of water flows required to sustain freshwater and estuarine

ecosystems
and the human livelihood and well
-
being that depend on these ecosystems
) and
is

increasingly being
introduced in
national water

legislation
s of some countries

6
(Australia, Kenya, Tanzania, Japan, South
Africa, etc)
.



Environmental flows
give

significant

contributions to river health, economic development

and poverty
mitigation
. They
guarantee

the continued availability of the many benefits that healthy

river and
groundwater systems bring to society. It is increasingly clear that, in the mid an
d long term, failure to
meet environmental flow requirements ha
ve

disastrous consequences
as
water scarcity

and
degradation
of
aquatic ecosystem
s
7
.






1

Swainson, R. and R. C. de Loe (2010). "The importance of context in relation to policy transfer: a case study of
environmental water allocation in Australia."
Environmental Policy and Governance
.



2

Tharme, R. (2003). "A global perspective on environmental flow assessment: emerging trends in the development
and application of environmental flow methodologies for rivers."
River

Research and Applications

19
(5
-
6): 397
-
441.



3

Davis, R. and R. Hirji (2003).
Water resources and environment technical note C
. Washington, D.C., World Bank,
Environment Department.



4

Tharme, R. (2003). "A global perspective on environmental flow assessment: emerging trends in the
development and application of environmental flow methodologies for rivers."
River Research and
Applications

19
(5
-
6): 397
-
441.



5

O’Keeffe, J. and

T. Le Quesne (2009). "Keeping Rivers Alive."



6

Le Quesne, T., E. Kendy, et al.
(2010). "The Implementation Challenge Taking stock of government poli
cies to
protect and restore environmental flows,."



7

Dyson, M., G. Bergkamp, et al. (2003).
Flow
-

the essentials of environmental flows
. Gland, IUCN.



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2




Numerous reports that analyze the role and assessment of the environmental flows indicate that
a
key
char
acteristic to a good environmental flows assessment
is
national legislation

that would make viable a
water management that provides for humans being as environmental flows

through regulations and
guidelines
. In this context the paper
center its analysis in

environmental flow law making experience
in
countries where
they

are considered
by international reports
as
well established to identify
if exist
gaps
between
e
-
flow
opera
tionalization

and what it is written in water laws. The purpose of this review

is to

determine which elements should have been considered in order to strength the implementation and
operationalization of e
-
flow concept. As a result of this analysis a list of element
is extract
that in
opinion
of the authors
could
increase the implementati
on opportunities;

afterwards
this framework will
be applied to

the new Peruvian water law to
critically analyze
the relevance and tools that this new law
is proposing to tackle operationalization of e
-
flows.


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3



Elements

that support

e
nvironmental

flows in
Water
legislation
s

to
protect ecosystem



The paper builds up the research around
the opportunities and barriers faced for water laws in the
attempt to implement environmental flows in different country context
. The identification of the
opportunities and
barriers were use to infer with elements should be included in the framework to lead
an effective implementation.
The research method selected was
literature review

which was suitable for
the timeframe available of the research
. For this research
secondary

data was

consulting such as
published data,
reports on environmental flows in water law, environmental flows implementation,
role
water management and
practice, stakeholder participation,
and primary data such as
national water
policies and plans.




A special attention was
pay

to the barriers to achieve operationalization of environmental flows
. These
obstacles identified were check with the law to analyze if changes or specifications in the acts could lead
a better and more effective implementation.
As a result of this analysis a list of nine element
s

were
obtained as relevant to have in consideration
in water laws and acts to


make viable the
i
mplement
ation


and operationaliz
ation of

environmental flows. Bearing these shortcomings in mind, there is

visibly

require

for improving existing

environmental flow acts. Although the most
vital

and
central

research gap

is that of understanding the links between
e
-
flow and ecosystem functions, human welfare and
socioeconomic benefits, the intention of the
exis
ting

research is not to
solve
this gap. Rather, it will build
on existing

knowledge
to extract lessons learnt
create a guide framework
which will be use to critically
analyze and assess the Peruvian water law regarding e
-
flows performance
.


Recognition an
d Acknowledgment



Recognition of the importance of environmental flows


The rising concern to protect the integrity of water ecosystem has force to include in water
management environmental flows.
There is no a universal agreed on environmental flows
definition in
this paper we accept the definition
according to the Brisbane declaration
8

in which
they are described as
the "quantity, timing and quality of water flows required to sustain freshwater and estuarine ecosystem
and the human's livelihood, and
well being that depends on these ecosystems".
Environmental

flow
acknowledgment varies

from country to
country in

South Africa
the
Water Act

(DWAF 1998)

coined the
term Reserve which
stands

for human and
environmental requirements for present a
nd future
generations

in Australia the National Water Initiative (NWI) and the Council
of Australian Governments

recognize
environmental flows as legitimate water user
s
9
; Moreover in Italy
the environmental flows are



8

(2007). "The Brisbane Declaration."
Water : official journal of the Australian Water and Wastewater Association.

34
(8): 34
-
35.



9

Hirji, R. and R. Davis (2009).
Environmental flows in water resources policies, plans, and projects : findings and
recommendations
. Washington, D.C., World Bank.



Page |
4



considered as framework law
and
they st
and as minimum in stream flows to be present downstream of
water diversions
10
.
These three countries are considered by Moore in the group of countries
in which
e
-
flows work
is
well established.

The
diverse approach
that these three countries have

is an exam
ple of
how new of

e
-
flows
concept is an indicative that has not been understood completely
.


Since Brisbane declaration, countries around the world started to modify the national policies

together
with legislation

to
recognize

environmental flows
(Dyson, Bergkamp et al. 2003)
.
According to

Flows
(2003)

the first step to increase feasibility of e
-
flows is to acknowledge their existence and

socio
-
economic
relevance in an integrative water managem
ent
.
Countries such as South Africa and Tanzania
recognize environment water as any other consumptive use,
as any other use is subject to prioritization
to guarantee their allocation these two countries also give first priority in use to them.

Other

countr
ies
such as Australia and Kenya agree with e
-
flows recognition

although

they don't
assign first priority to
env
ironment water because state that prioritization is difficult to put in practice

(Hirji and Davis 2009)
.
This

two different
position
s

among the

historical pioneer
s

on

e
-
flows
recognition show that there are
many alternatives to protect environment water as long the main principle to secure water for humans
a
nd environment for present and future generations remain as the frame of the water management.

Now s
ome
criticism

ha
s

risen since integrative water management has to secure water for environment
as for humans,
for example some villagers in South Africa p
erceive the e
-
flows as water for fish
(Van
Koppen, Jha et al. 2002)

which is a common misperception. To avoid this Hirji and Davis
(2009)

recommend to make evident the link between environment conservation to health improvement and
social benefits.
Reports from

the

World Bank and IUCN

(2003)

indicate that
clear identification of the
benefits
from

secure environment water stimulate the participation and compromise of the

people
specially villagers and small farmers.



Social and Cultural Aspects


Stakeholder participation mechanism


Participation is a largely an information
-

dissemination exercise among government departments and
implementing agencies with the opportunity to comment
(Acreman and Ferguson 2010)
. It generates
trust and empowerment among stakeholders
and creates respect and support for the decision
-
making
process
11
. While stakeholder participation can help generate networks of water arrangements, bringing
dynamism as well as publicity to the water sector
(Dyson, Bergkamp et al. 2003)
;

this needs to be
tailored to fit stakeholder capacities
(Le Quesne, Kendy et al. 2010)
. In e
-
flows assessment stakeholder
involvement
is essential at
every stage

(regulating, planning, implementing) in order to design objectives
and scenarios around stakeholder requirements
12
. As such stakeholder involvement needs to be a
required by water Laws at what extent, and at which stage depends on the socio
-
poli
tical context of
each country and the existing capacities (understanding, funding, and technology). This last



10

Stefano Maran,
Environmental Flows and Integrated Water Resource Management: the Vomano River case
study

11

Iza, A. O. and R. Stein (2009).
Rule : reforming water governance
. Gland, Switzerland, The Worl
d Conservation
Union IUCN Water Nature, Initiative




12

King, J. and C. Brown (2010). "Integrated basin flow assessments: concepts and method development in Africa
and South east Asia."
Freshwater Biology

55
(1):

127
-
146.



Page |
5



consideration is especially important because sometimes stakeholder participation can turn into an
impediment to the implementation
13
. An example

of this had been observed in the South African Water
Act implementation which sometimes was delayed because participation hearings didn't match small
emerging farmer's capacities creating difficulties understanding concept such as Reserve, licensing,
relo
cation and over
-
allocation
14
. Particularly in the South African Water Act could be add that
participation is required at every stage of water management decision resulting which would be
consider a trigger to contribute in slowing down implementation
15
. On t
he other hand, Tanzania water
policy doesn't require explicit stakeholder's involvement and had achieved the formalization of
nine

rivers and a lake basin organization
16

and several environmental flow initiatives are under way or have
advanced in anticipati
on of (river basin) water resources management plans
17



Institutional Arrangement


Institutional arrangements need to set understandable requirements for efficient and transparent
institutions and rules for water allocation
(Le Quesne, Kendy et al. 2010)
.

A strengthen legal and institutional framework increase the capacity of water governance, which could
support an effective water management to provid
e water for human being and environment
(Dyson,
Bergkamp et al. 2003)
. Therefore a clear set of responsibilities, regulations, acts are needed to impulse
an implementation of e
-
flows. Even though institutional arrangement set ups are be
ing generally
described by different authors (Le Quesne, Hirji, King and Brown, Iza) what we can state that clear
responsibilities, task and roles are required to support an effective e
-
flows implementation.

For example in Kenya’s water legislation a clear

institutional reform was set to facilitate effective
implementation

this included the creation of an independent Water Resources Management Authority
at national level and the establishment of six Catchment Area Advisory Committees, at a regional level

18
.. A strong institutional arrangement is not only meant to implement environmental flows but also to
achieve an integrative water management.


In addition, Hirji
19

suggests that an independent authority should be in place to measure the
performance of the
environmental flows arrangement. This brings a sense of fairness and transparency
in the process
(Davis and Hirji 2003)
.




13

Hirji, R. and R. Davis (2009).
Environmental flows in water resources policies, plans, and projects : findings and
recommendations
. Washington, D.C.,
World Bank.



14

Ibid.



15

Ibid.



16

Ibid.



17

Ibid.



18
18

Le Quesne, T., E. Kendy, et al. (2010). "The Implementation Challenge Taking stock of government policies to
protect and restore environmental flows,."



19

Hirji, R. and R. Davis (2009).
Environmental flows in water resources policies, plans, and projects : findings and
recommendations
. Washington, D.C., World Bank.

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6




Environmental Water Mechanism


Set of environmental

quality

objectives


The environmental quality objectives are quantifiable cri
teria to be applied for monitoring the
accomplishment of the implementation of environmental flows and may relay to the quality and
quantity of water, the habitat and the biota. For example,
environmental
quality objectives for a river
site may be that the

river should stay sediment free and that
a particular
species composition be as in
the natural state

(Dickens

2011)
.

Carefully s
et
ting

environmental quality objectives
could facilitate the
monitoring activities because would narrow
the
criteria of which elements
asses

in order to verify the
achievement of the e
-
flows, if with less elements is possible to evalu
ate
the state of the river less cost
would be required, which can be the difference between failure or success implementing e
-
flows.
Examples of
provision to set environmental quality objectives can be found in the European Water
Framework(WFD) as Acreman
(2010)

stated that the WFD is thus a specific approach to setting
objectives for river restoration in which the focus is on ecological outcomes.

The European Framework
Directive focuses only one environmental objective "
good ecological status" for all its water bodies. In
cases like South African Water Law
(DWAF 1998)

and Water Resources Management Act of 2009 is
necessary

first

to establish a national classification system
to then set

the

environmental
quality
objective
for
every water body to facilitate the
manage
ment and monitoring

of

water resource
s
.
On the
other hand the Australian and Florida water frameworks don't set classification system or environmental
quality objectives at national level inste
ad
the

environmental objectives are set at basin level
according
to
water allocation plan
s

and

local, national and international
environmental quality
objectives
20
.


Licensing



The licensing process has as an end to register the number users and types of

uses. The objectives to
register thought licenses are to: manage and control water resources for planning and management,
protect water resources of over
-
use, ensure fair distribution among users
(DWAF 1998)
.

The existent or
new licenses need t
o support the desired configuration of protect environmental flows in order to
operationalize them. Some examples of new types
of

licenses had been tried by the Water European
Framework

Directive
:

time limited and license trading
(Acreman a
nd Ferguson 2010)
.

In the case of time
limited license currently the WFD grant a license for a period of 12 years, finalized the granting period
the license is revaluated and the in the license trading is a way to exchange water rights in times of
drou
ght and if water
right
holder wants
.
A
ccording to
Le Quesne
(2010)


licenses need to be link with
water availability

(surface and groundwater)

and support by water balance models
these requirements
would contribute to the basin planning water management process.


The acceptance of
new types of license and regulation for
water abstractions

in favor of
environment
water

is
one of the
most

difficult
challenges

of the environmental flows implementation
21
.
Because of
most of the river are already over
-
allocated
(Tharme 2003)

and o
nce over
-
allo
cation is achieved it is








20

Ibid.



21

Le Quesne, T., E. Kendy, et al.
"The Implementation Challenge."



Page |
7



difficult and political unpopular to recover the water for the environment
22
.

Recover water in over
-
abstracted river remains as number one obstacle in the e
-
flows implementation
Alternatives to deal
with over
-
allocation are

incentiv
es to buy existent water uses

and water markets to trade water
rights
(Le Quesne, Kendy et al. 2010)
.




Data
Assessment



Environmental flow assessment
methods


There are
more than 200

existing methods for determining an environmental flow

(Tharme 2003)
. Look
-
up tables and desk
-
top analysis for

environmental flow assessment are used in scoping studies, national
audits or river basin planning
(Le Quesne, Kendy et al. 2010)
. Functional analysis
and habitat
modeling

are the most widely applied approaches in impact assessment or restoration planning for single or
multiple stretches of a river
(Davis and Hirji 2003)
. These assessment methodologies can contribute to
setting management rules and mo
nitoring their impact on river health
23
.


The majority of the countries that
include
environmental flows in the
ir

law require the "best available
science" to
assess
them
24
.
In the case of Australia, the Council of Australian Government and National
Water Ini
tiative (NWI) required as a national principle to use the best available science to assess the
environmental flow requirements
(Hirji and Davis 2009)

The methods in

Australia are centered in the
use of panel experts such as the Expert Panel Assessment Method and more sophisticated have
emerged like the Flow Restoration Method
(Marchand and Wegen 2003)


On the other hand in South African Water Act

(DWAF 1998)

there is no mention about the "best
available science to determine environmental flows". However the Department of Water and Forestry
affairs (DWAF) was the first to adopt a hierarchy of methods varying in complexity to assess e
-
flows.
Developing 4 level
s (desktop, rapid, intermediate, or comprehensive) currently in South Africa the
number of assessment method to determine environmental flow is enormous being almost 90 different
methods have been developed in South Africa since the Water Act of 1998
(Dicke
ns 2007)

being
the
Building Block Methodology (BBM) the most important contribution in terms of holistic methods which
is one of two methods that are routinely applied to determine the e
-
flows and which is support with a
manual
(Marchand and Wegen 2003)
.


As

e
xperience

shows


include the premise best available science in water laws or not has the same result
exceptional approaches according to the requirements of countries

But

which

defined as best available
science

from
a develop
country to
may vary to a d
eveloping
country

and
therefore the "best available
science"

requirement

might lead to a lot of debate
.
Being convenient
define

that
the priority of the



22

Hirji, R. and R. Davis (2009).
Env
ironmental flows in water resources policies, plans, and projects : findings and
recommendations
. Washington, D.C., World Bank.



23

Dyson, M., G. Bergkamp, et al. (2003).
Flow
-

the essentials of environmental flows
. Gland, IUCN.



24

Hirji, R. and R. Davis (2009).
Environmental flows in water resources policies, plans, and projects : findings and
recommendations
. Washington, D.C., World Bank.



Page |
8



method established would be to determine e
-
flows according environmental, social and economic
benefits

in order to search for the best fit.




Monitoring Mechanism


Monitoring mechanism enables to control the delivery of environmental flows in the river and
demonstrate their contribution to ecological, social and economic benefits
, to increase knowledge in

order to refine e
-
flows
(Dickens 2011)

. The monitoring provisions should include accessibility of
informa
tion, frequency of monitoring activities and the responsible authority

(Le Quesne, Kendy et al.
2010)
. Monitoring programs should therefore include
hydrological data (historical series, discharge),
hydraulic features (river depth, vegetation
) as

well as environmental outcomes (aquatic ecosystem,
environmental services)
25
.

Davis
26

found

that monitoring considerations in water laws are particular importan
t
given the general
poor understanding of the links between flow
s

and ecological response
s
.
In addition
,

King and Brown
27

state
d

that monitoring programs in water laws will test the efficacy of the environmental flows release
and will help to determine if a
djustments are necessary, to meet ecological and social
targets.
If
monitoring
is

not
prescribed

in water law
there is no certainty to
how e
-
flows would be measure
, you
cannot manage what don't measure
.



Examples of monitoring provision can be found i
n th
e South African Water
Act
of 1998

which
requires
the
monitoring
system
to

collect information
on:
water quantity and quality,
water resources use,
rehabilitation of water resources,
compliance
with

the quality objectives, health conditions of
aquatic
ecosystem and atmospheric conditions that may affect water resources
28
.
And the Tanzanian water
policy which contemplate trans
-
boundary, reserve and environmental quality objectives monitoring.


Reinforcement mechanism to support the environmental flows


Enforcement, which is needed when voluntary compliance fails, fosters security amongst stakeholders
(Hirji and Davis 2009)
.

The State may use police action to assur
e compliance

with a specific law or act
29
.





25

Ibid.



26

Davis, R. and R. Hirji (2003). Water resources and environment technical note C. Washington, D.C., World Bank,
Environment Department.



27

King, J. and C. Brown (2010). "Integrated basin flow assessments: concepts and method development in Africa
and South east Asia."
Freshwater Biology

55
(1): 127
-
146.



28

DWAF (1998).
The National Water Act
. Pret
oria, Department of Water Affairs and Forestry.



29

Iza, A. O. and R. Stein (2009).
Rule : reforming water governance
. Gland, Switzerland, The World Conservation
Union IUCN Water Nature, Initiative




Page |
9



Therefore water law should include provision to reinforce, e.g. sanction and penalties in case that
environmental flows implementation activities are not applied this could force the implementation
instead if ther
e are no consequence for no protect the e
-
flows (e.g. penalties, sanctions, or monetary
fees) how water agencies would persuade pre
-
existing behaviors and consider river health, vegetation,
sediments, etc.


Economic Aspect

Financial mechanism to invest i
n capacity and research of environmental flows assessment


According to Dyson
(2003)

environmental flows will be accepted when the change in flow regime proves
to improve markets in social, environmental and economic con
ditions or instead will exacerbate social
inequities. This premise make e
-
flows a constant fight between the status quo of over
-
exploitation or
doing it what is right for environment. In addition Le Quesne
30

states a general notion that the
establishment
of

sustainable financial mechanisms
is required to effectively implement e
-
flows. But a
clear definition of what is sustainable is not specific. From our experience it can be said that financial
mechanism for e
-
flow should be cost
-
recovery as any other proje
ct in order to guarantee e
-
flows
implementation. The
financial mechanism

should enable the

research, assessment, monitoring and
enforce
ment of environmental flows as all of these activities cost money
.
To recover the costs different

forms of

financial mechanism exist e.g. market trade, charges, taxation, fees.



E
nvironmental flows implementation
should also lead to
re
-
allocation of water from current uses and
users
to
environment

through
monetary incentives
from government to users to trade
their water
entitlements
31
.
Only in the last decade the possibilities of using water markets to transfer water
temporarily or permanently begun to be
used
32
.
Trading of water from one use to another is not a
universal phenomenon, but formal and informal mark
ets exist in a number of countries, including
Mexico, India, Pakistan, Chile, the USA and Australia
33
.
In the case of Australia large quantities of water
for environment
were
bought but until now an active trade market has not been achieved
34
.









30

Le Que
sne, T., E. Kendy, et al.
"The Implementation Challenge."



31

Hirji, R. and R. Davis (2009).
Environmental flows in water resources policies, plans, and projects :
findings and
recommendations
. Washington, D.C., World Bank.



32

Dyson, M., G. Bergkamp, et al. (2003).
Flow
-

the essentials of environmental flows
. Gland, IUCN.



33

Le Quesne, T., E. Kendy, et al.
(2010). "The Implementation Challenge Taking stock of government policies to
protect and restore environmental flows,."



34

Hirji, R. and R. Davis (2009).
Environmental flows in water resources policies, plans, and projects : findings and
recommendations
. Washington, D.C., World Bank.



Page |
10




To visu
alize the framework to effective implement environmental flows in water laws a set of
classification was made to cluster the elements found through the literature review. Fig 1, shows the
cluster and the nine elements, the order in which their arrange has

been influenced by
how much strong
the elements were presented in the literature review.







Recognition and
Acknowledgment

Inclusion and
recognition of
the
environmental
flows in water
laws

Social and Cultural
Aspects

Stakeholders
participation

Institutional
Arrangements

Environmental
Water Mechanism

Set of Quality
Objectives

License:

Allocation

Reallocation

Data Assesment

Environmental
flows

Methodology

Environmental
Flows
Monitoirng

Reinforcement

Economic Aspect

Financial
Mechanism

Page |
11



Environmental Flows in t
he
new
water law of Peru 2009

Peru general water policy reform was driven by the need to update the general Water Law of 1969. The
water law of 1969 was based on the management of the quantity regardless the quality and the
environment degradation. It did not recognize the economic val
ue of the resource and did not recognize
as administrate unit the basin. In addition to this driver, the necessity to decentralize the water
management (participation of users, national regional and local government in the decisions process)
influences t
he necessity to
complete reform the

water law. Previously, the institutional arrangement of
the Water Law of 1969 was
chaotic;

the Ministry of Agriculture was in charge of
granting
all water
permits. Due to
this

the Ministry was centered on agricultural uses, the consequence was the
marginalization and no recognition of the private and non
-
agricultural users
.
Furthermore, international
agreements
also
had driven the water policy reforms
such as UN

Conference on t
he Environment
(Stockholm)
,
UN Water Conference in Mar del Plata
, Dublin Principles 1992, Rio
Declaration and Agenda
21
, and
World Summit on Sustainable Development
.

All these eleme
nts influence that the Peruvian
government changed the water law consideri
ng an integrated water management and water for the
environment requirements.

The
new
Peru water law
en
acted in 2009 has as main objective to

regulate water use
s
, water resources
management, and
the
performance of the government and all the parties involve
d in the water
management process
.

In which the environmental flows are recognized as
the volume of water that
have to be maintain in water course to protect or conserve water ecosystems, landscape aesthetics and
other aspects of scientific and cultural in
terest
.

The water law
35

is
accompanied

by a
strategy plan
36


which
includes guidelines, strategies and instrum
ents to guide the actions to have a better water use in
Peru in the short, medium and long term, in accordance with the Environment General Law of 1995. The
strategy plan is a theoretical instrument in which the objectives of the nation are defined in orde
r to
ensure a sustainable water use.
Regarding the activities to set environmental flows the strategy plan
defines the follow ones: Set the environmental flows specifically for each region of Peru, considering the
geographic area, project and context of t
he river basin; constant assessment of the environmental flows
in the river; regulat
ion

of
sustainable water use; promot
ion

the efficient
water
use
; protection

of the
ecosystem and
establishment of a

program to monitor water bodies

status
. This plan expect
s

an
environmental flows implementation between the
years
2011
-
2016 in 5 pilot basins
37

follow by

a
complete implementation
in the rest of the country
at
the year 2020.



Recognition of the importance of environmental flows to protect river health and to guaranty the
continuity of
human

benefits



The environmental flows are defined in the Peru water law
38

as
the
"
volume of water that has to be
maintain
ed

in
the river

to con
serve water ecosystems, landscape aesthetics and other aspects of



35

MINAG (2009). Water Law Lima. Lima, Ministry of Agriculture
-
National Water Authority.



36

MINAG (2009).
Policy and National Strategy of the Water Res
ources in Perú.

Lima.



37

Ibid.



38

MINAG (2009). Water Law Lima. Lima, Ministry of Agri
culture
-
National Water Authority.

Page |
12



scientific and cultural interest
”. The environmental flows need to remain in the river and can't be used
under any circumstance for consumptive uses. However the prioritization doesn't incl
ude the
environmental flows as a user. First priority is given
to supply basic needs as cooking and bathing
extracting directly from the source without infrastructure
, second is for domestic use (water distributed
by pipelines) and third is for productive
water uses (
agriculture, aquaculture, hydropower, industrial,
health, mining, recreational, tourist and transport
).
The water law doesn't rank the environmental flows
in the prioritization list the water law is unclear to protect the e
-
flows.
The Peruvian
water law
recognizes environmental flows as a tool to conserve water ecosystem,
but they are isolate in the law.
There

is no clear relationship between water for environment and social and economic benefits

but
doesn't make
clear a
link between river healt
h and social benefits. This is relevant according to the
framework to achieve an efficient implementation. As the link to the delivery of goods and services for
the people is missing the recognition of the environmental flow concept is weak (Castillo
39
)
.



To improve the effectiveness of the environmental flows concept the Peruvian water law should include
a link to health and
a prioritization that which according to our framework are the first steps to consider
serious changes in the water management of a

country.


Licensing

process

A license provision is subject to a hydrological study (water use plan and hydrology study) that proves
that there is enough water available to guarantee environmental flows, consumptive uses, native and
peasant communities use
s. After verifying the accuracy of the hydrological study the license is granted
by the National Water Authority. This means that the license is granted only if it doesn't affect the
environmental flows
but without a priority how the environmental flows ca
n be use to control whose
gets or not a water license
. The uses subject to licenses are domestic use (water distributed by a piping
network) and productive water uses
(
agriculture, aquaculture, hydropower, industrial, health, mining,
recreational, tourist
and transport
)
.


The license process is
adequately

identified in the Peruvian Water Law as it is conditional to the
environmental flows protection. An element that could be introduced to enhance implementation in
over
-
allocated

basins is the recognition of

the potential of trading water.



Environmental flow assessment
methodology

The law doesn't require "best available science" to assess the environmental flows but requires the
responsible

authorities (
National Water Authority

(ANA)

and
the Ministry of
Environment
) to assess the
environmental. According to the developed framework this is a requisite to enforce that the best
expertise and knowledge would be used to develop the assessment. To improve the effectiveness of
implementation the Peruvian governm
ent should consider
including

as requisite the best available
science to
guarantee a

continue
d

evolution of the assessment methods.


Monitoring Mechanism

The law prescribes
monitoring, control and surveillance

actions

to ensure conservation of water sourc
es,
goods and services related to them

and sustainable use
. A monitoring program is not defined so no
inclusion

of monitoring

frequency,

monitoring parameters or monitoring objectives relating to








39

Castillo, L. (2009). "Nueva ley de aguas que no convence."
Páginas

34
(214): 15
-
21.



Page |
13



environmental flows. As such the effectiveness of the water
law to protect the ecosystem cannot be
analyzed
, supported by data nor enforced. The risk of
degrading

the river will still be present.

The Peruvian water law should include details to the monitoring, control and surveillance actions with at
least
include

hydrological data as well as environmental outcomes. As such river depth, vegetation,
aquatic ecosystem quantity, discharges, etc.


Financial mechanism to invest in capacity and research of environmental flows assessment


The law
has included some financ
ial mechanism
to fund water plans and monitoring programs but does

no
t

recognize the
cost

and
benefits
of
implement environmental flows

or

water markets to trade water
for the
environment.

This lack of financial mechanism to promote the environmental flows

creates
uncertainty if the funds to assess, control and enforce will be put in place to guarantee an effective
implementation of environmental flows. This makes necessary that
the law include financial mechanism
to enable research, assessment, monitoring
and
enforce
ment of environmental flows.


Stakeholder participation mechanism

There is no stakeholder participation requirement to define the environmental flows requirements in
the water law. This consultation process should need to be considered in order

to bring trust in the
implementation of the environmental flows.


Institutional Arrangement

The institutional arrangement in Peru is constituted by
a new
main national authority the National
Water
Authority. Additionally
, a Water Management Authorities f
or each of the
fourteen hydrological

areas
, seventy three Local Water Authorities spread in the
country.
They depend economically from the
Ministry of Agriculture which creates doubts regarding political and economical
interest in the water
management deci
sions.

The authority responsible to implement the

environmental flows

is not defined. The protection of the
water quality is a shared responsibility between the National Water Authority, the Water Management
Authority and the Local Water Authority.

Ther
e is also no consideration of involvement of an independent authority to assess implementation
performance. In Peru this is especially
recommended having as the ministry

in charge of the water
management
and therefore environmental flows at the Ministry of

Agriculture which is

one of the major
users
40
.


The water law
does not provide

clear
division
of functions and responsibilities and the inclusion of an
independent authority to assess the level of achievement of the environmental flows implementation.
In

order to increase the effectiveness clear mandate regarding the authority to control the
environmental flows and the possibility to have an oversight authority should need to be included in the
water law.


Conclusion

Solely
inclusion in water laws doesn't

ensure
successful

implementation

of environmental flows, but
legal recognition is a
prerequisite
41
. Based on an extensive lit
erat
ure review nine elements were found



40

MINAG (2009).
Policy and National Strategy of the Water Resources in Perú.

Lima.



41

Dyson, M., G. Bergkamp, et al. (2003).
Flow
-

the essentials of environmental flows
. Gland, IUCN.

Page |
14



that need to be prescribed in a Water Law to effectively protect the ecosystem through the
concept of
environmental flows.





Recognition of the importance of environmental flows to protect river health and to guaranty
the continuity of human benefits
; this element tries to identify how the law defines the
environmental flows and if their import
ance is emphasized with prioritization.



Set environmental flow objectives; this provision tries to identify if classification system or
quality objective to manage the resources have been included in the laws.



Environmental flow assessment methodology
, re
garding the environmental flows assessment
the laws should consider to request for the best available science in order to guarantee a high
level of understanding of the problem.



Licensing process
, this provision should operationalize the environmental flow
s, allowing that
only uses that no affect the integrity of the environmental flows could get a license.



Monitoring Mechanism, activities require by law to control, assess, and identify if the
environmental flows are being delivered and if the social benefi
ts have been achieved.



Financial mechanism to invest in capacity and research of environmental flows assessment



Stakeholder participation mechanism; this element requires to involve the stakeholders to
promote a fair process, including their requirements w
hile setting the environmental flows
requirements.



Institutional Arrangement, this element require that clear mandate should need to be establish
in the law
;

avoiding overlapping and
including the intervention of an oversight authority to
measure performan
ce.



Reinforcement activities
, this element tries to identify in the law provisions to force compliance
such as sanctions, penalties and charges.


The key elements identified in this framework will not only ensure environmental flows implementation
but als
o be of value for integrated water management where clear management and responsibilities are
required.

The new Peruvian water law
recognizes

the concept of environmental flow, but omits most of the other
elements. Repeat the elements present and missing. The recognition of environmental flows in the Peru
water legislation might be one of the most remarkable features that this one has
because i
n the
previously water law of 1969 water quantity was the only
aspect considered

as important in the water
management.

However,
as a

recently enacted law (2009) and considering the current level of
understanding regarding environmental flows in the scientific community, this law misses almost
essential elements making it unlikely that protection of the ecosystem will be
guaranteed
.




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