Monday, March 29, 2010

Asian Carp litigation: Renewed preliminary injuction dismissed


The Great Lakes Law Blog reports that the US Supreme Court denied Michigan's renewed motion for preliminary injunction to close the Chicago Canal and prevent a Great Lakes-St. Lawrence River basin invasion by the Asian Carp.

The Supreme Court was as concise as for the denial of the original motion in January, so it remains unclear why the preliminary injunction is rejected.

Tuesday, March 23, 2010

Do the human rights to water improve access to water?


The brother blog Indonesia Law Reporter has just posted a few reflections on an recent article by David Zetland, «Water Rights and Human Rights: The Poor Will not Need Our Charity if We Need Their Water».

This interesting article covers many important issues discussed by the Indonesia Law Reporter.

From a purely legal perspective, Zetland's article is guilty of totally ignoring the actual legal classifications pertaining to property rights and ownership, especially in the context of continental legal traditions.

In the Napoleonic tradition, property offers usus, fructus and abusus to the owner. Property may vary in form through specified modalities, and can be divided into constituent rights through recognised dismemberments.

These typologies and the related legal constructs and mechanisms, which are specific to each jurisdictions, have an important impact on the economic management of water resources because they often determine the transaction costs related to transfers of rights.

Unfortunately, blackboard economics tend to overlook the very significant impacts of legal «technicalities», which are particularly crucial in jurisdictions where the doctrine of numerus clausus is accepted (see for example this article).

According to this doctrine, the number of forms for property rights are not infinite, but limited to a specific few recognised forms. This forces newly proposed resources management regime to fit into the existing legal taxonomy for property rights, and constrains inovation.

Finally, although the assessment of the effectiveness of Zetland's proposal is entirely beyond the competences of this blog, it remains usefull to point out that all national scale experiments to create a water market for allocative efficiency have de facto failed up to now, and spectacularly so in most cases.

Saturday, March 20, 2010

Water case law in Québec 3: groundwater extraction under the agricultural zoning regime


In Québec, a new groundwater abstraction may have to be authorised under two governmental authorisation regimes.

The first regime is provided for by the Groundwater Catchment Regulation and generally targets all groundwater extraction projects in Quebec.

The second authorisation regime, which is provided by the Act respecting the preservation of agricultural land and agricultural activities (ARPALAA), is not primarily concerned with groundwater management and is only applicable in rural areas.

Nevertheless, the ARPALAA has impacts on groundwater management in Québec. Some of these impacts are described in this article.

The purpose of the ARPALAA is to preserve agriculture and agricultural land. Essentially, the ARPALAA is a land use management statute that generally prohibits any person, except with the authorisation of the Commission de protection du territoire agricole (CPTAQ), from using real estate property for purposes other than agricultural activities in designated agricultural regions.

Hence, if someone wants to extract groundwater in zoned agricultural land, the CPTAQ has to pre-authorise the extraction project. However, CPTAQ's decision, whether positive or negative, can be contested before the Administrative Tribunal of Québec (ATQ).

In Vergers Leahy inc. v. Fédération de l'UPA de St-Jean-Valleyfield (in French), the Appellant requests CPTAQ's authorisation to sink a well to produce bottled water in agricultural zone. The CPTAQ rejects the application and the Appellant contests this decision before the ATQ. In this instance, the parties request permission to file new evidence.

Among the many issues pertaining to administrative law decided in this appeal, the Court of Appeal crucially delineates the cases in which new evidence can be brought before the ATQ in appeal of the CPTAQ.

The Court establishes that the ATQ can only consider new evidence when there is an error in law or a determining error in fact in CPTAQ's original decision, in conformity with section 21.4 of ARPALAA.

As a result of all this, a refusal to authorise a groundwater abstraction project stands.

Tuesday, March 16, 2010

MDGs: Drinking water targets would be met, but not for Sanitation


According to a new report from the World Health Organisation and UNICEF, "Progress on sanitation and drinking-water – 2010 Update", the world appears on track to meet the Millenium Development Goals with respect to drinking water in 2015, but likely to miss the 2015 sanitation MDGs by almost one billion people.

Friday, March 12, 2010

Global Water Intelligence on private sector participation in watsan


Global Water Intelligence is taking a stance on the issue of public vs private sector participation in drinking water service provision which is examined by Catarina de Albuquerque, UN independent expert on the right(s) to water and sanitation.

Thursday, March 11, 2010

Construction of the Roghun power station in Tajikistan: The Water-Energy Nexus in Central Asia


A recent article by Murodbek Laldjebaev in the International Journal of Water Resources Development under the title «The Water-Energy Puzzle in Central Asia: The Tajikistan Perspective», explores the issues related to water scarcity and energy shortages from a Tajikistan perspective.

The problem stems in part from extensive irrigation in the summer which requires dam releases to sustain low flows and agriculture during the water scarce season. In turn, this prevents water saving in hydropower reservoirs to produce energy when needed during the cold winter.

Interestingly according to the article, unilateral action from upstream Tajikistan to start building the Roghun power station appears to pave the way for cooperation between basin countries in Central Asia. Laldjebaev concludes that:

«The short-term recommendation for this option, therefore, is to maintain an emphasis on the construction of Roghun HPS. In the long-term, however, Tajikistan should not place high stakes on the construction and in fact it should be prepared to abandon the project in case the social, environmental, and financial costs outweigh the potential benefits.»

Wednesday, March 10, 2010

World Water Day: Dee & Tweed HELP workshop (Live Broadcast)


The UNESCO Centre for Water Law, Policy and Science at the University of Dundee will be holding a workshop (link here) with a focus on land use and water management. Following is the release received from the organizers:

«The University of Dundee’s UNESCO Centre for Water Law, Policy and Science is takes a leap into the world of online conferencing for the celebration of World Water Day next month, on the 22nd March.

This event will be broadcast live via the internet, both through live audio-visual and a transcript of proceedings in real time. Global participants to this free online event will be encouraged to provide immediate feedback to the conference speakers and organizers and to share comments with one another through an online forum facility.

The focus will be on the work of the UNESCO Centre in the Tweed valley, in particular the interface between land use and water management. Comparisons will be made with other UK river valleys, in particular the Dee and the Thames. The conference will showcase global water issues and the multidisciplinary work of the UNESCO Centre in promoting the importance of water law and hydrological science in helping to achieve more consensual and informed water policy and practice. World Water Day was inaugurated in 1993, since when it has been a focus globally for action on water issues, including promoting fair and equitable access to transboundary watercourse and groundwater resources of freshwater.»

Storm water pollution rules in Maryland


Timothy Wheeler from the Baltimore Sun reports that a compromise has been reached at the legislative level to go forward with storm-water pollution rules which are supposed to take effect on 4 May 2010.

The law and its rules require developers to better control rainfall washing off their projects so that there is no more runoff and it is no more polluted than it was before construction began. Builders also have to reduce the amount of pavement so more rain could soak into the soil naturally, instead of collecting it in large ponds or underground tanks.

Sunday, March 7, 2010

Water case law in Québec 2: water services tariffication


In the province of Québec (Canada), municipalities provide more than 80% of the population with drinking water, and tariffication is not volumetric but generally indirect and linked to municipal real-estate property taxation.

As a result, tariffication of water services is moslty a non-contentious issue and case law relatively scarce.

In this context, the recent delivery of two judgements from the Superior Court in less than a month regarding drinking water tariffication is a notable occurence.

In the first judgement, 2623-4617 Québec inc. v Sept-Îles (Ville de) (in French), the plaintiff company, owner of real-estate properties, requests that be declared inapplicable the municipal regulation setting repayments for the municipal debt incurred further to drinking water infrastructure extension.

The municipal regulation imposes taxation on the owners of immovable property in the sector where service is extended. The Plaintiff opposes this on the basis that it does not actually receive drinking water, that there are no buildings on its lots, that the lots cannot be built upon, and that it does not and cannot derive a benefice from service extension.

The municipal regulation relies on the powers granted by section 487 of the Cities and Towns Act, which reads as follows:

487. [...] the council may impose the special tax for the payment of municipal works of any kind, including works of maintenance, according to either the municipal valuation or the area or the frontage of the taxable property subject to such tax. [...]
The council may also charge the cost of such works
(1) to the municipality;
(2) to the ratepayers of part of the territory of the municipality;
(3) to the ratepayers benefiting from the works when they are carried out in any part of the territory of the municipality [...]
[Emphasis added]

Section 561 of the Cities and Towns Act adds that:

561. Where the repayment of a loan is to be borne by the owners of immovables of a part only of the territory of the municipality or by those who benefit from the works as determined under section 487, the tax to be levied each year during the term of the loan shall be assessed only on the immovables of the owners concerned. [Emphasis added]

So the question is whether the Plaintiff is an interested owner that benefit from the infrastructure extension.

After a review of case law precedents, the tribunal decide that the municipal regulation is applicable to the Plaintiff. Benefits do not have to be direct and immediate to impose on owners the financial burden of infrastructure extension, but it is necessary that the taxable owner derive a potential future benefit. In this instance, the tribunal decides that it remains possible that the Plaintiff benefit from connection to the service in the future, and the municipal regulation must be applied. Of note is the fact that the infrastructure serves to provide water for fire hydrants.

Legal principles similar to these in various jurisdictions have a significant impact on investment amortization. Investment viability may be influenced by court decisions that interpret the reach of the norms governing who should pay for infrastructure extension. However, economic studies and academic research on watsan provision rarely look at such legal norms and their interpretation in case law. Doing so could help ground blackboard economic studies.

In the second judgement, 2957-6345 Québec inc. c. Roberval (Ville de) (in French), the Plaintiff corporation is the owner and operator of a shopping mall in which the 23 businesses use drinking water provided by the Defendant municipality.

The Plaintiff attacks the validity of a municipal regulation on drinking water tariffication that requires the Plaintiff to pay 23 times the CAN$210 minimal service fee per year.

The Plaintiff's motion is rejected by the Court on the ground that the Plaintiff has not put forward any evidence that the municipal regulation is invalid because unjust, while the burden rests clearly of the Plaintiff's shoulders to do so according to consistent Court of Appeal precedents.

All in all, this case is notable because it is one of the very few that focuses on the interpretation of sections 244.1 to 244.6 of the An Act respecting Municipal taxation in the context of drinking water tariffication.

Wednesday, March 3, 2010

Water case law in Québec 1: the undead property of water


A recent decision by the Québec Superior Court, Laflamme v. Laflamme (in French), declares the Plaintiff proprietary owner of the water in a lake (the bed of the lake is owned by the Defendant) through acquisitive prescription applicable to immovables (see section 2875 and ff Civil Code of Québec (CCQ)).

This decision construes surface water as an object of property in Québec, an more particularly immovable property. This is in direct contradiction to the text of the law and to the near unanimous doctrine on the subject (see section 913 CCQ and doctrine here (in French)), that characterises water as a res communes to which property is not applicable.

It feels like property over water in Québec is like a zombie - you keep on shooting it but it keeps coming back at you.

Test for intervention in US Supreme Court original action


The recent South Carolina v North Carolina case from the U.S. Supreme Court confirmed the test that non-state interveners must pass to take part in an action based on the Court's original jurisdiction between two or more states.

According to Jeff Kray from Marten Law who provides a detailed analysis of the case, this is a significant decision notably because it can have the following effect:

«The Supreme Court’s procedural decision in South Carolina v. North Carolina opens the door to private water users to intervene in water resource disputes between states and foreshadows more active private party involvement in such cases.»

More involvment from private actors might mean, on one hand, that stakeholder participation could increase and ultimatly reduce the importance of artificial state boundaries superimposed on natural watersheds, but on the other hand, it might also mean increased costs and delays in resolving water disputes as well as comparative disadvantage for poorer water users.

Finally, because the test for non-state actor involvment is not tied in some way to the states' use of their legislative and administrative power to apportion water within their own jurisdiction, increased non-state intervention might ultimatly result in a need for additional jurisprudential developments to clarify the states' role and powers in water apportionment.

Tuesday, March 2, 2010

Review of the MDGs: New directions for the HRBA to development in the water sector?


With little time left until the 2015 deadline to achieve the Millennium Development Goals, the UN General-Secretary produces a preliminary report on progress towards the MDGs through a review of successes, best practices and lessons learnt, obstacles and gaps, challenges and opportunities.

This might have an impact on the international development agenda related to attainment of human right to water and sanitation.