The law of the river : transboundary river basin management and multi-level approaches to water quantity management / Cathy Suykens.
2018
K3498 .S89 2018 (Map It)
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Title
The law of the river : transboundary river basin management and multi-level approaches to water quantity management / Cathy Suykens.
Published
Cambridge [England] ; Antwerp [Belgium] ; Portland [Oregon] : Intersentia, [2018]
Copyright
©2018
Call Number
K3498 .S89 2018
ISBN
9781780686318 paperback
1780686315 paperback
9781780686608 electronic book
1780686609 electronic book
1780686315 paperback
9781780686608 electronic book
1780686609 electronic book
Description
xviii, 378 pages : illustrations, maps ; 25 cm
System Control No.
(OCoLC)1022513500
Summary
A healthy water sector has been identified as a crucial contributing factor in reaching and maintaining a healthy society, from an environmental, human health and economic perspective. However, freshwater resources are under increasing pressure and climate change is expected to have a substantial impact on the hydrological cycle and freshwater resources. Considering the fact that the territories of 145 States worldwide, and 60 per cent of EU territory, run through transboundary lakes and river basins, their good governance is essential in tackling the challenges ahead. To this end, solid inter-regional and international upstream-downstream cooperation mechanisms are necessary. 'The Law of the River' takes a comparative perspective by analysing the relevant legal and policy frameworks in the European Union and the United States, with the goal of providing Critical Success Factors to transboundary river basin management. The main focus of this book is on water quantity management, specifically floods, scarcity and droughts.
Note
This book is based on the author's PhD research.
A healthy water sector has been identified as a crucial contributing factor in reaching and maintaining a healthy society, from an environmental, human health and economic perspective. However, freshwater resources are under increasing pressure and climate change is expected to have a substantial impact on the hydrological cycle and freshwater resources. Considering the fact that the territories of 145 States worldwide, and 60 per cent of EU territory, run through transboundary lakes and river basins, their good governance is essential in tackling the challenges ahead. To this end, solid inter-regional and international upstream-downstream cooperation mechanisms are necessary. 'The Law of the River' takes a comparative perspective by analysing the relevant legal and policy frameworks in the European Union and the United States, with the goal of providing Critical Success Factors to transboundary river basin management. The main focus of this book is on water quantity management, specifically floods, scarcity and droughts.
A healthy water sector has been identified as a crucial contributing factor in reaching and maintaining a healthy society, from an environmental, human health and economic perspective. However, freshwater resources are under increasing pressure and climate change is expected to have a substantial impact on the hydrological cycle and freshwater resources. Considering the fact that the territories of 145 States worldwide, and 60 per cent of EU territory, run through transboundary lakes and river basins, their good governance is essential in tackling the challenges ahead. To this end, solid inter-regional and international upstream-downstream cooperation mechanisms are necessary. 'The Law of the River' takes a comparative perspective by analysing the relevant legal and policy frameworks in the European Union and the United States, with the goal of providing Critical Success Factors to transboundary river basin management. The main focus of this book is on water quantity management, specifically floods, scarcity and droughts.
Bibliography, etc. Note
Includes bibliographical references (pages 355-378).
Record Appears in
Table of Contents
Acknowledgments
v
Figures and Tables
xv
Acronyms
xvii
ch. I
Introduction
1
1.
Subject and problem definition
1
2.
importance of integrated river basin management
3
2.1.
Increasing pressure on water resources: the Holocene hangover
4
2.2.
Quantity management in relation to quality management
6
2.3.
Transboundary, transboundary, transboundary
8
2.4.
Summing up: added value
10
3.
Methods
10
3.1.
Comparative analysis of the river basins
10
3.1.1.
Selection of river basins
10
3.1.2.
Validity of the comparison
12
3.2.
Method of evaluation
16
4.
Theoretical framework
18
4.1.
Introduction
18
4.2.
Subject of evaluation: what should be resilient?
18
4.3.
Uncertainties in transboundary water management: resilient regarding which phenomena?
19
4.4.
Foundations of resilience and adaptive capacity
20
4.5.
Benchmarks of evaluation
23
4.5.1.
Schematic overview of benchmarks
23
4.5.2.
Discussion of benchmarks
25
4.5.2.1.
Equitable and reasonable utilisation and the no harm-rule
25
a.
Background: International theories governing shared waters
27
b.
principle of equitable and reasonable utilisation
30
c.
"no-harm" rule
33
d.
Conclusive remarks on the application of the principles
34
4.5.2.2.
Integrated river basin management at the hydrological scale
36
4.5.2.3.
Meaningful public participation
40
4.5.2.4.
Monitoring and opportunities for learning
42
4.5.2.5.
Enforcement and effectiveness
43
ch. II
EU Legal Framework for Transboundary Waters with a Focus on Water Quantity Management
47
1.
Introduction and delineation of scope
47
2.
Five pillars of the transboundary legal water regime in the EU
49
2.1.
Preliminary overview of water law in the EU
49
2.2.
Pillar I: Scope
49
2.2.1.
geographical coverage
50
2.2.2.
physical coverage
52
2.2.3.
material scope
55
2.2.3.1.
Quantity in its relation to quality water management
55
2.2.3.2.
legal basis for water quantity at EU level
57
a.
Subsidiarity and proportionality
57
b.
Different decision-making procedures
59
2.2.3.3.
legal basis for water quantity management through time
61
2.2.3.4.
struggle for balance of the Water Framework Directive
63
2.2.3.5.
Floods Directive: based on the Environment Title
65
2.2.3.6.
scope of quantitative water management
66
2.3.
Pillar II: Substantive provisions
67
2.3.1.
Surface water
67
2.3.1.1.
Good status for surface water
68
2.3.1.2.
Water services and the cost-recovery principle
72
a.
cost-recovery principle
73
b.
Water services
75
2.3.1.3.
Substantive obligations for floods
78
2.3.2.
Groundwater
80
2.4.
Pillar III: Procedural rules
82
2.4.1.
Proceduralisation in the EU Water Landscape
82
2.4.2.
Procedural requirements with regard to water quantity management, including flood risk management
83
2.4.2.1.
duty to cooperate - general
83
2.4.2.2.
Plans, programmes and objectives setting
85
2.4.2.3.
Prior exchange of information in the context of cartography
87
2.4.2.4.
Prior notification of planned measures
87
a.
Quantitative water management measures included in the EIA scope
88
b.
Effect on the environment
90
c.
Transboundary aspect
91
2.4.2.5.
(Transboundary) public participation
92
a.
Transboundary public participation in the water directives?
95
b.
Citizens' Juries: a useful tool?
99
2.4.2.6.
Monitoring and reporting
101
2.5.
Pillar IV: Institutional mechanisms
102
2.5.1.
Scope of application
102
2.5.2.
International River Basin Districts
103
2.5.2.1.
Member States' coordination efforts
108
2.5.2.2.
Common Implementation Strategy
109
2.6.
Pillar V: Dispute settlement and enforcement
110
2.6.1.
Commission as mediator
111
2.6.2.
exclusive jurisdiction of the CJEU: a challenge
113
2.6.3.
Between mediation and exclusive jurisdiction: No middle ground
116
3.
Conclusion
116
ch. III
'Come Hell and High Water' - The Law of the Scheldt District
121
1.
Introduction and approach
121
1.1.
General
121
1.2.
Approach to finding the Scheldt puzzle pieces
122
2.
Legal landscape and toolbox in the Scheldt District
125
2.1.
Flood risk management strategies in different institutional settings
125
2.2.
Flood Risk Management Realm
127
2.2.1.
physical vulnerability to flood risks in the Scheldt States
127
2.2.2.
Implementation of the Floods Directive: General
129
2.2.3.
Legal instruments to operationalise flood risk management
135
2.2.4.
application of plans and programmes
140
2.2.5.
existence (or lack thereof) of legally enshrined safety standards
145
2.2.6.
Preparing for and recovering from floods
147
2.2.7.
Public participation in the basin countries
152
2.3.
Preliminary conclusion
154
3.
nuts and bolts of (hydrological scale) governance and the actor landscape in the Scheldt District
157
3.1.
designated hydrological scales
157
3.2.
competent authorities at the relevant (hydrological) scale
160
3.3.
Conclusion
178
4.
three dimensions of cooperation in the Scheldt District
180
4.1.
National level promotion of international cooperation in the Scheldt
180
4.1.1.
duty to cooperate as enshrined in the national frameworks
180
4.1.2.
Cross-border consultation and public participation
183
4.1.3.
solidarity principle
184
4.2.
Regional cooperation in the Scheldt District
185
4.2.1.
Tools for regional cooperation available to the Scheldt riparians
185
4.2.2.
Domestic legal provisions on decentralised cooperation in the Scheldt District: Theory
200
4.2.3.
Cooperation in practice
205
4.2.4.
Cooperation in theory and cooperation in practice: A good match?
212
4.3.
International cooperation through the ISC
212
4.3.1.
Legal basis for cooperation
212
4.3.2.
Organisational structure
214
4.3.3.
ISC: Advisory body without binding powers
214
4.3.4.
Lack of focus on water quantity management from a legal perspective
216
4.3.5.
"Significant increase of flood risks"
217
5.
Conclusion: Evaluation of the Scheldt Regime
218
5.1.
Equitable and reasonable utilisation and the no-harm rule
218
5.2.
Integrated river basin management at the hydrological scale and nested governance
222
5.3.
Meaningful public participation
226
5.4.
Monitoring and opportunities for learning
227
5.5.
Effectiveness and enforcement
228
6.
Looking back and looking forward
230
ch. IV
Case Study: Transboundary Water Governance in the United States with a Focus on the Delaware Basin
233
1.
Introduction
233
2.
United States legal framework for water management: Background
235
2.1.
Climatological background to river basin management
235
2.2.
River basin management
236
2.3.
Competent authorities in US water management
237
2.4.
Federal-state dynamics
239
2.5.
History of water governance in the United States
241
2.5.1.
State-based federalism
241
2.5.2.
More prominence for the federal level
242
2.5.3.
Major federal acts as milestones and more equal footing for states
244
2.5.4.
Decrease of federal funding
245
2.5.5.
Push in river basin management
245
2.6.
Preventing and solving interstate water disputes
246
2.7.
River basin management: Types of governing entities
254
3.
Delaware River
255
3.1.
Justification of choice
256
3.2.
Natural characteristics of the Delaware
256
3.3.
Governance of the Delaware in the 20th and 21st centuries
258
3.4.
nuts and bolts of the Delaware governance mechanism
260
3.4.1.
scope of the Delaware Compact: comprehensiveness first
261
3.4.2.
Powers of the Delaware Commission: far-reaching
262
3.4.3.
Composition and funding of the Commission: Federal and state dynamics
262
3.4.4.
Powers of the Commission: General
265
3.4.5.
Legal character of the Commission
268
3.4.6.
Plans and programmes
269
3.4.7.
Flood risk management
270
3.4.8.
Withdrawals and diversions
272
3.4.9.
Limits to the power of the Commission
275
3.4.10.
Enforcement and dispute resolution
276
3.5.
Sub-basin initiatives in the Delaware Basin
277
3.5.1.
Introduction
277
3.5.2.
Examples of sub-basin schemes in the Delaware Basin
278
3.5.3.
Conclusion on sub-basin and basin level interaction
283
4.
Conclusion: Evaluation of the Delaware River Basin Mechanism
284
4.1.
Equitable and reasonable utilisation and No-Harm
284
4.2.
Integrated river basin management and nested governance
287
4.3.
Monitoring and learning opportunities
291
4.4.
Meaningful public participation
293
4.5.
Effectiveness and enforcement
296
ch. V
Recommendations
297
1.
Introduction
297
2.
Critical Success Factors
298
2.1.
Evaluative comparison
298
2.2.
Critical Success Factors
300
2.2.1.
CSF 1: Integrated approach to water management from the outset to enable further operationalisation on the basis of the supporting legal framework
301
2.2.2.
CSF 2: The overarching legal framework enables and supports effective basin-wide actions by the Basin Body within the basin as the main unit of governance
304
2.2.3.
CSF 3: A meaningful basin-wide plan and/or programme which defines actual measures and links with the sub-basin scales
306
2.2.4.
CSF 4: Clarity regarding principles underpinning the use of shared water resources and protocol for emergency situations
308
2.2.5.
CSF 5: Continuity in financial resources independent from Parties' allocations and adequate number of independent staff members in the Basin Body
309
2.2.6.
CSF 6: Enforcement is an important aspect of RBM and can be ex ante, i.e. proactive, and ex post, i.e. through reporting and compliance monitoring
309
3.
Application to the EU legal framework
310
3.1.
Toward a more comprehensive approach to IRBD management in the EU
310
3.1.1.
River Basin District Security as an overarching tool
310
3.1.2.
Remedying the primary law bifurcation between quantity and quality
313
3.1.2.1.
Article 192(2) under scrutiny
313
3.1.2.2.
Environmental flow: A useful bridge
316
3.1.2.3.
matter of interpretation
319
3.1.2.4.
Revision of the Treaty provision
322
3.2.
Enhancing cooperation in IRBDs
324
3.2.1.
question of Institutional Mechanisms
324
3.2.2.
Enhanced Cooperation Model (ECM)
326
3.2.3.
EU Water Directives
330
3.2.4.
River Basin District Security assessment
332
3.3.
ECM implemented in IRBDs
334
3.3.1.
Institutional set-up and scope of the mechanism
335
3.3.2.
Connecting the dots within the IRBD
338
3.3.3.
Instruments relevant to the lower level scales in the territorial cooperation route
339
4.
Concluding remarks
342
ch. VI
Conclusions
345
1.
Resilience theory as a tool for evaluation
345
2.
Lessons learned from the dissection of the EU legal framework
346
3.
Evaluation of the Scheldt and Delaware Mechanisms
348
4.
Critical Success Factors in relation to IRBD management in the EU
351
Bibliography
355