Governing Groundwater: Between Law and Practice (Water Governance - Concepts, Methods, and Practice) 3030927776, 9783030927776

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Water Governance - Concepts, Methods, and Practice

Gabriela Cuadrado-Quesada

Governing Groundwater Between Law and Practice

Water Governance - Concepts, Methods, and Practice Series Editors Claudia Pahl-Wostl, University of Osnabrück, Osnabrück, Germany Joyeeta Gupta, Faculty of Earth and Life Sciences, University of Amsterdam, Amsterdam, The Netherlands

This book series aims at providing a platform for developing an integrated perspective on major advances in the field of water governance. Contributions will build bridges across established fields of expertise, across disciplinary perspectives, across levels from global to local and across geographical regions. Topics to be covered include conceptual and methodological advances capturing the complexity of water governance systems, institutional settings, actor constellations, diagnostic approaches, and comparative studies of governance systems. The book series encompasses monographs, textbooks and edited, coordinated volumes addressing one theme from different perspectives. The book series will address mainly a wider scientific audience, but will also provide valuable knowledge to interested practitioners. The sustainable management of fresh water resources and the ecosystem services that they provide is one of the key challenges of the 21st century. Many water related problems can be attributed to governance failure at multiple levels of governance rather than to the resource base itself. At the same time our knowledge on water governance systems and conditions for success of water governance reform is still quite limited. The notion of water governance aims at capturing the complexity of processes that determine the delivery of water related services for societal needs and that provide the context within which water management operates. Water governance is a fast growing field of scholarly expertise which has largely developed over the past decade. The number of publications in peer reviewed journals has increased from less than 20 in the year 2000 to nearly 400 in the year 2013. The increasing popularity of the term in science and policy has not lead to conceptual convergence but rather to an increasing vagueness and competing interpretations of how the concept should be understood, studied, and analyzed; which disciplines are involved; and what methodological approaches are most suitable for the study and analysis of water governance. The time seems to be ripe for comprehensive synthesis and integration.

More information about this series at https://link.springer.com/bookseries/13400

Gabriela Cuadrado-Quesada

Governing Groundwater Between Law and Practice

Gabriela Cuadrado-Quesada Water Governance Department IHE-Delft Institute for Water Education Delft, Zuid-Holland The Netherlands Governance and Inclusive Development Group University of Amsterdam Amsterdam, North-Holland The Netherlands

ISSN 2365-4961 ISSN 2365-497X (electronic) Water Governance - Concepts, Methods, and Practice ISBN 978-3-030-92777-6 ISBN 978-3-030-92778-3 (eBook) https://doi.org/10.1007/978-3-030-92778-3 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Groundwater discharging from springs, Guácimo, Costa Rica. Source The author

Preface and Acknowledgments

The idea of this book was born during my first meeting with Joyeeta Gupta when I was just starting my postdoctoral fellowship at IHE-Delft, Institute for Water Education. In that first meeting—in early 2017—we discussed the need to tie together the research that I conducted while working on my Ph.D. on groundwater governance and law and the upcoming postdoctoral research at IHE-Delft where I was going to examine groundwater practices and how these are interwoven with governance and law. The result of that need is this book. However, before I could write this book in a coherent manner, first I needed to conduct my postdoctoral research and then I had to figure out how to bring everything together. In the process, my thinking was enriched by scholarship in Critical Legal Studies as well as by fruitful theoretical discussions, that often went far beyond governance and law, with several of my colleagues at the Water Governance Department at IHE-Delft. These discussions helped to organise and arrange the many individual pieces that I had collected throughout my research such that together they form the complete picture that is presented in this book. The book, presents the most interesting findings of the research that I have been conducting during the past eight years. The core questions that this book addresses are questions that I have been trying to answer for many years—even before I started writing this book or my Ph.D. These questions and issues have worried me since I was living in Costa Rica and working as an environmental lawyer in an NGO, which exposed me to the everyday life problems that water, the environment and many people suffer. How do people use (misuse), govern, protect or pollute surface and groundwater and why? Why do people get involved (participate) in surface and groundwater governance? What are the different practices, mechanisms or tools that people use to govern surface and groundwater? How have people used law to improve surface and groundwater governance? What is the overall role of groundwater, water and environmental law in all these matters? In order to address these questions, the book uses case studies (from Costa Rica, Australia, the Netherlands, and India, where I have lived and worked in the past eight years), countless participant observations and in-depth interviews that I conducted with government officials from different ministries (e.g., water and environment), vii

viii

Preface and Acknowledgments

policy-makers, law-makers, NGOs (e.g., environmental organisations and human rights organisations), different groundwater users (e.g., big and medium size corporations, small farmers, people who do not have access to tap water and people who had their water polluted) and people who have filed environmental litigation related to water problems. I deeply enjoyed these conversations as they were tremendously instructive on the path to answering the aforementioned questions. My immense gratitude goes out to all the people who participated as interviewees in my research along the years. I am indebted to Joyeeta Gupta for encouraging me to write this book and for her rigorous reading and her many critical suggestions. I would like to thank Cameron Holley for being an excellent Ph.D. supervisor, a source of inspiration and for reading previous versions of many of the chapters of this book, especially chapters three and four. Particular thanks to Jazmin Montoya for working with me in the initial editing and endless revisions of this manuscript. I am very grateful to Susanne Schmeier for reading this book line by line and providing many useful comments. Many thanks to Francesco Bregoli for helping me with the design of the maps that I needed for illustration. I am thankful to Cristóbal Bonelli for his thoughts and comments on my theoretical framework chapter. Thanks to Zaki Shubber for reading early versions of many chapters of this manuscript. I have very much appreciated working with K. J. Joy in SOPPECOM while living in Pune, India, which was my inspiration for Chap. 8. I would like to acknowledge the enriching experience to work with Klaas Schwartz, in understanding the problem of groundwater excess in the Netherlands, which was the basis of Chap. 5. Infinite thanks to Peter Kamphuis for his intelligence, enthusiasm and endless support during the writing of this book, which included reading multiple times different versions of this manuscript. This book is the best version that I could write to explain and illustrate how groundwater practices, governance and law are complex and intertwined and how they all influence each other. It is written for a broad audience—but aims nevertheless to show how different legal mechanisms/tools can be used and have been used to address water and more broadly environmental governance problems. Addressing water and environmental problems has become more and more urgent every year, and there is the need to take action. Law can contribute to that. Law can address water and environmental problems and/or reproduce water and environmental injustices; that is why everyone should be involved in crafting, implementing and challenging (in courts and through social movements) the different legal mechanisms/tools existing in a democracy. Delft/Zuid-Holland, The Netherlands

Gabriela Cuadrado-Quesada

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 About This Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Core Challenges of Groundwater Governance . . . . . . . . . . . . . . . . 1.3 Law Shaping Groundwater Governance . . . . . . . . . . . . . . . . . . . . . 1.4 Research Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6 Structure of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Invisible Water Law and Governance—At Heart of Equity and Sustainability Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Planetary Boundaries and Social Floors—What is at Stake? . . . . 2.3 Sustainability: What Does It Mean and Why is It Important? . . . 2.4 Equity: What Does It Mean and Why is It Important? . . . . . . . . . . 2.5 Governance of Groundwater—Adding the Dots of Planetary Boundaries, Social Floors, Sustainability and Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 The Role of Water Law in Shaping Groundwater Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Practices as a Way to Reconceptualise and Retheorise Groundwater Law and Governance . . . . . . . . . . . . . . . . . . . . . . . . . 2.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Groundwater Overexploitation, Changing Crops, A New Wine Region and Legally Binding Allocation Plans . . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Australia: Setting the Scene for Groundwater Law and Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Groundwater Law, Policy and Institutional Framework . . . . . . . . . 3.4 Groundwater Law in South Australia . . . . . . . . . . . . . . . . . . . . . . . .

1 1 3 5 6 6 7 8 11 11 12 13 16

17 20 22 24 24 29 29 30 31 35 ix

x

Contents

3.5

Local Collective Groundwater Governance . . . . . . . . . . . . . . . . . . . 3.5.1 Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.2 Empowered Irrigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.3 Returning Aquifers to a Sustainable Level . . . . . . . . . . . . 3.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5

6

Climate Change Effects and Non-legally Binding Groundwater Plans to Improve the Governance of Hidden Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Groundwater Law and Governance in Western Australia . . . . . . . 4.3 A Top-Down Approach to Groundwater Governance . . . . . . . . . . 4.3.1 Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Limitations in Governing Through a Top-Down Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Pushing for Sustainable Levels of Groundwater Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Cutting-Edge Water Law, Strong Water Institutions and the Problem of Groundwater Excess . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Netherlands: Setting the Scene for Groundwater Law and Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Development of Water Infrastructure in The Netherlands . . . . . . . 5.4 Groundwater Legal and Policy Framework . . . . . . . . . . . . . . . . . . . 5.5 Institutional Framework of Groundwater Governance . . . . . . . . . . 5.6 The Conundrum of Groundwater Excess . . . . . . . . . . . . . . . . . . . . . 5.6.1 Location and Importance . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.2 Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.3 Responses of the Dutch Government Agencies . . . . . . . . 5.6.4 The Organisation and Demands of the Community of Delft Towards Government Agencies—A Reflection on Equity in a Country of the Global North . . . . . . . . . . . . . . . . . . . . 5.6.5 A Reflection on Sustainable Use of Groundwater Resources in Delft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . When is Enough, Enough? Environmental Annihilation, Social Exploitation, Chemicals Running Through Groundwater and a Legal-Mix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36 37 38 41 43 47

49 49 50 51 52 54 57 61 65 67 67 68 68 69 73 76 76 77 79

80 83 83 86

89 89

Contents

Costa Rica—Setting the Scene of Groundwater Law and Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Groundwater Legal, Policy and Institutional Framework . . . . . . . 6.4 Environmental Annihilation and Inequality . . . . . . . . . . . . . . . . . . . 6.4.1 Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.2 Appealing an Environmental Impact Assessment—In Search of Procedural and Representational Justice . . . . . . . . . . . . . . . . . . . . . . . . 6.4.3 People’s Participation in the Politics of the Municipality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.4 Visiting the Ombudsman—Practising Recognition . . . . . 6.4.5 An Environmental Lawsuit—Pursuing Sustainability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xi

6.2

7

8

A Sandy-Beach Paradise, Groundwater Exploitation and Groundwater Governance Through Communal Water Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 ASADAs or Communal Water Boards in Costa Rica . . . . . . . . . . . 7.3 Groundwater Exploitation, Unplanned Tourism and Associated Real Estate in a Vulnerable Coastal Paradise . . . . 7.3.1 Location and Importance . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 ASADAs—A Prominent Participatory Mechanism to Pursue Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Monitoring of Aquifers—A Practice of ASADAs to Promote Sustainable Use . . . . . . . . . . . . . . . . . . . . . . . . 7.3.5 The Creation of Protection Areas—Another Practice of ASADAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Groundwater, Bans on Free Grazing, Tree Felling and Drilling Wells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 India—Setting the Scene for Groundwater Law and Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Groundwater Legal, Policy and Institutional Framework—A Synopsis of Maharashtra . . . . . . . . . . . . . . . . . . . . 8.4 Chasing Wellbeing in Rural India . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.1 Location and Importance . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.2 Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.3 A Leader Arises and the Importance of Awareness . . . . . 8.4.4 Political Participation in the Gram Sabah . . . . . . . . . . . . .

90 90 94 94

97 98 100 101 102 105

107 107 108 110 110 111 112 115 117 117 121 123 123 124 125 129 129 130 131 132

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Contents

8.4.5

Law and Local Groundwater Practices—How Are They Intertwined? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 8.5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 9

Between Law and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Most Common Invisible Waters Practices . . . . . . . . . . . . . . . . . . . . 9.2.1 Reduced Groundwater Use When There is a Scarcity Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.2 Capacity-Building or Trainings to Improve Groundwater Understanding by Users . . . . . . . . . . . . . . . 9.2.3 Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.4 Reforestation/Creation of Protection Areas . . . . . . . . . . . 9.2.5 Groundwater Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.6 Development as Business as Usual . . . . . . . . . . . . . . . . . . 9.3 The ‘Outlier’s’ Practices of the Case Studies . . . . . . . . . . . . . . . . . 9.4 Groundwater Law: Differences Between Countries in the Global North and the Global South . . . . . . . . . . . . . . . . . . . . 9.5 Groundwater Practices and Broader Water and Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.6 A Reflection on Actors that Mobilise Equity and Sustainability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.7 Conclusions—A Need for a Better Relation Between Groundwater Law and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Conditions that Mobilise Groundwater Practices that Should be Considered in the Future Design of Groundwater Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 Groundwater Local Problems/Crises . . . . . . . . . . . . . . . . . 10.2.2 Local Communities Knowledge and Awareness . . . . . . . 10.2.3 Connections Among Groundwater, Surface Water, and Other Natural Resources . . . . . . . . . . . . . . . . . . . . . . . 10.2.4 Government Involvement, Support and Funding . . . . . . . 10.3 Broader Theoretical Reflections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.1 Equity at Heart of Groundwater Law and Governance Discussions . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 Sustainability at Heart of Groundwater Law and Governance Discussions . . . . . . . . . . . . . . . . . . . . . . . 10.3.3 Core Recommendations for the Future of Groundwater/Water and Environmental Law . . . . . . . 10.4 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

141 141 142 142 142 143 144 144 145 145 146 148 149 151 153 155 155

156 156 157 159 160 161 161 163 164 165 168

List of Figures

Fig. 1.1

Fig. 2.1 Fig. 2.2 Fig. 3.1 Fig. 3.2 Fig. 3.3 Fig. 4.1 Fig. 5.1 Fig. 5.2 Fig. 6.1 Fig. 6.2 Fig. 7.1

Fig. 8.1 Fig. 9.1

A spring is groundwater becoming surface water. The photo shows groundwater, discharging from springs, Guácimo, Costa Rica. Source The author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition of groundwater and three reasons which make groundwater to deserve especial attention. Source Author . . . . . . . Definition of water governance. Source Zwarteveen et al. (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Early evolution of the Australian legislation on surface and groundwater resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Groundwater governance in Australia . . . . . . . . . . . . . . . . . . . . . . . Map illustrating the case study of the Angas Bremer and showing the prescribed wells area. Source Author . . . . . . . . . Map illustrating the South West case study and showing main groundwater resources. Source Author . . . . . . . . . . . . . . . . . . Institutional framework of water and groundwater governance in The Netherlands. Source Author . . . . . . . . . . . . . . . Map illustrating the case study of Delft and main groundwater resources. Source Author . . . . . . . . . . . . . . . . . . . . . . Map illustrating the case study of Guácimo and main groundwater resources. Source Author . . . . . . . . . . . . . . . . . . . . . . Maps showing the pineapple expansion in Costa Rica from 2000 to 2018. Source SNIT 2018 . . . . . . . . . . . . . . . . . . . . . . Map illustrating the case study of coastal communities of Santa Cruz, and the main groundwater resources. Source Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Map illustrating the case study of Hivre Bazar and the main groundwater resources. Source Author . . . . . . . . . . . . . . . . . . . . . . The groundwater governance and law butterfly—as a way to recontextualise and retheorise groundwater governance and law. Source Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 19 23 31 32 37 52 75 76 95 96

111 130

153

xiii

List of Tables

Table 3.1 Table 3.2 Table 4.1 Table 5.1 Table 5.2 Table 6.1 Table 6.2 Table 7.1 Table 8.1 Table 8.2

Development of surface and groundwater legal and policy frameworks in Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary/Angas Bremer Case Study, South Australia, Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary/South West, Western Australia, Australia . . . . . . . . . . Development of surface and groundwater legal frameworks in The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary/Delft, South Holland, The Netherlands . . . . . . . . . . . . Development of surface and groundwater legal and policy frameworks in Costa Rica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary/Guácimo, Limón, Costa Rica . . . . . . . . . . . . . . . . . . . . Summary/Coastal communities of Santa Cruz, Guanacaste, Costa Rica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Development of surface and groundwater legal frameworks in India with a focus on Maharashtra . . . . . . . . . . . . . . . . . . . . . . Summary/Hivre Bazar, Maharashtra, India . . . . . . . . . . . . . . . . . .

35 46 63 71 85 93 103 119 128 138

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Chapter 1

Introduction

The so-called ‘water [including groundwater] crisis’ is less a consequence of generalised scarcity than a manifestation of uneven power geometries … Boelens, Perreaul and Vos, 2018

1.1 About This Book

Groundwater • • • • •

The largest store of fresh water on Earth. Its extraction has grown over the past 50 years. It is widely available even in periods of no rainfall. Its natural filters make it of naturally good quality. It supplies nearly half of all the drinking water needs in the world.

The purpose of the book is to provide insights into how different people and communities engage with groundwater governance according to their social realities, needs, and challenges, while at the same time examining groundwater law (formal instruments e.g., laws and regulations but also in practice) and how it has contributed to the transformation of groundwater governance. Despite the fact that most people know that water is a vital natural resource that makes life possible, it is often overexploited, polluted, and unequally distributed. Therefore, it is the cause of numerous struggles but it can also become a source of community and unity. This book studies, in particular, groundwater for three main reasons. First, it is the largest store of fresh water on Earth and its extraction rates have exponentially grown over the past 50 years. Second, its intrinsic particularities—such as invisibility— make its governance more complex than surface waters, which has caused a series of disadvantages in mapping, monitoring, and organising people to protect it—‘out © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_1

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1 Introduction

of sight, out of mind’—(Megdal 2017; Villholth et al. 2018). Lastly, groundwater use has often been boosted or subsidised in order to alleviate poverty, especially in countries in the Global South (Shah 2008) (Fig. 1.1). The contribution of this book is three-fold: 1.

It provides an empirical examination of groundwater law (not only the normative but also the cognitive conception of law) and groundwater governance. In order to do so, it seeks to understand what people do and why e.g., how they use, share, protect and pollute groundwater, in order to come up with a more analytical conceptualisation and theorisation of groundwater law and groundwater governance based on the principles of equity and sustainability. In doing so, it examines a diverse range of groundwater problems—pollution, scarcity,

Fig. 1.1 A spring is groundwater becoming surface water. The photo shows groundwater, discharging from springs, Guácimo, Costa Rica. Source The author

1.1 About This Book

2.

3.

3

overuse, lack of data, different development of legal and policy frameworks— and diverse responses from government bodies, through the comparative and contrasting investigation of six case studies from two countries of the Global North and two countries of the Global South. It brings together the legal scholarship (Caponera and Alheritiere 1978; Hayton 1982; Utton 1982; Burchi 1999; Benda-Beckmann 2002; Holley and Sinclair 2013; Hendry 2014; Carmody et al. 2016; Nelson and Quevauviller 2016) and the social science scholarship (Fraser 2008; Joy et al. 2014; Zwarteveen and Boelens 2014; Boelens et al. 2018) to enrich the discussion on how to improve the design and implementation of groundwater law based on an understanding of water struggles and justice; and groundwater practices. It provides evidence on how different countries are dealing with groundwater reforms—at the national level—while at the same time are innovating— at the local level—with different practices of using, sharing and protecting groundwater.

1.2 Core Challenges of Groundwater Governance Groundwater’s intrinsic characteristics make it a reliable source of water: widely available even in periods of no rainfall (WWAP 2012, 2019), with affordable development costs that make it relatively easy and inexpensive to access. This turns groundwater into a very decentralised source. Groundwater also has natural filters that trap sediment and other particles (like bacteria) making it of naturally good quality. These features make it remarkably important for human water supply in urban and rural areas in most countries around the world (UNEP 2007). For example, groundwater in confined artesian basins can be accessed at depths of up to 2 km and often provides a strategic water resource especially during droughts (e.g., Great Artesian Basin, Australia) (UN Environment 2019). Groundwater is the major drinking water source for the majority of people globally, especially in arid-regions and in periods of droughts (UN Environment 2019). In West Asia two-thirds of the water used is groundwater. In the European Union (EU) about 75% of the inhabitants rely on groundwater (UN Environment 2019). Moreover, groundwater use has increased by 1.3 trillion per year across North America (Famiglietti and Rodell 2013; UN Environment 2019). In Latin America groundwater accounts for 30% of water withdrawals (Campuzano et al. 2014; UN Environment 2019). In Africa around 75% of the population depends on groundwater (Altchenko and Villholth 2014; UN Environment 2019). Groundwater use continues to increase almost everywhere around the globe. Groundwater extraction is estimated to be of approximately 982 km3 per year worldwide (Margat and van der Gun 2013), equivalent to about 33% of total water withdrawals (Seibert et al. 2010). Industries that extract from aquifers include industrial agriculture, mining, geothermal energy and ground-source heat pumps, disposal and/or storage of hazardous wastes, fluid injection (e.g., oil and gas extraction) and

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1 Introduction

underground constructions (UN Environment 2019). All these users and uses are creating pressures which are leading to stronger competition for the resource with unknown consequences. The increased use of groundwater in agriculture has led to rising depletion rates in major aquifers and semi-arid zones (UNEP 2012; UN Environment 2019). Pumping rates that for many years have exceeded long-term natural recharge have resulted in some aquifers being overexploited (Famiglietti 2014). The excessive extraction of groundwater has also caused land subsidence in some coastal areas e.g., Manila and Bangkok as well negative impacts on wetlands ecosystems (UN Environment 2019). Moreover, groundwater levels and their capacity to recharge are increasingly exposed to natural and anthropogenic influences on the terrestrial climate and the hydrological cycle such as climate change, the negative effects of which will affect the renewability of groundwater and its recharge rates and levels (Gupta and Pahl-Wostl 2013; Pahl-Wostl 2015; UN Environment 2019). Additionally, given the increasing global water requirements, the demand of groundwater is likely to continue to increase (Morris et al. 2003). This shows that it is currently easier and cheaper, than ever before, to access groundwater due to more affordable and advanced pumping technologies. Hence, the aquifers are rapidly depleting. This deterioration is both quantitative (i.e., availability) but also qualitative (i.e., pollution). The discovery of pollutants in an increasing number of aquifers and water supply wells implies that groundwater can no longer be assumed to be a virtually pristine source of drinking water requiring little or no treatment (Morris et al. 2003). Although natural processes also generate groundwater pollutants (e.g., sodiumchloride, arsenic, fluoride, and radioactivity in fossil groundwater aquifers) human activities related to population growth, urbanisation, agricultural expansion, human and industrial waste discharge are often key sources of groundwater pollution. Furthermore, human health impacts from untreated groundwater are of particular concern (UN Environment 2019). Another key problem is related to (in)equity. Even though groundwater extraction is increasing almost everywhere that does not necessarily mean that its access and distribution has improved. Unequal groundwater access, distribution, and exposure to polluted groundwater often reveal that even though the current state of groundwater resources is alarming, there is—at least for now—enough water to meet global needs; the main problem is that not everyone can access the water they need. Access to and control over groundwater has winners and losers; those who are getting enough water and even misusing it and polluting it are the winners, and those who are not getting enough water to survive or are getting only polluted water are the losers (Boelens et al. 2018).

1.3 Law Shaping Groundwater Governance

5

1.3 Law Shaping Groundwater Governance For the purpose of this book, law is seen as a subset of governance (Dellapenna and Gupta 2009). Water law and water entitlements/rights are usually seen as established by customary practices that have been institutionalised in legal principles. Such legal principles indicate the conditions under which people or organisations can have access to water. Through history, first comers acquired rights to land and water by occupation and use respectively. These rights are often recognised in the law. This can imply that newcomers get fewer rights to these resources. Normative concepts such as ‘first in time, first in rights’ developed over time (von Benda-Beckmann 2002, von Benda-Beckmann et al. 1997) and provide a starting point for understanding who has access to water. However, this creates problems for late-comers who are then unable to access the water. This led to the development of alternative principles for water access such as the human right to water, which entitles every person without discrimination to have physical and affordable access to water. However, given that legal principles can be mutually exclusive, it is not always clear which has priority. In simple terms, legal principles require materialisation (how are water rights/licences/permits being exercised) in relation to the concrete social, cultural, economic, political, and ecological situation (Dellapenna and Gupta 2009). Two principles considered fundamental for groundwater law and governance are equity (fair/just distribution) and sustainable use (rationalisation of the resource), these are the core principles discussed in this book. Critical legal studies recognise that for every principle there are counter-principles. People have to make choices. Legal principles such as equity and sustainable use can be a key feature of (ground)water governance as they can influence people’s behaviour and affect the nature and details of governance within specific contexts. Therefore, they can shape—in a positive or negative way—the governance of (ground)water resources and such positive or negative evaluation depends on the choice of criteria. For example, laws promoting sustainable use and protection of groundwater resources can lead to positive impacts such as preventing overuse and pollution (Hendry 2014) but may limit access to water; laws promoting fair access and allocation can address water equity/water justice. Access addresses issues of meeting the minimum needs of humans to live a dignified live; and allocation addresses distributing the remaining resources, responsibilities and risks between different social actors (WHO 2019; Gupta and Lebel 2020). However, laws can also promote negative groundwater governance. Throughout the world, humans have institutionalised legal principles in (ground)water governance that have also normalised injustices and inequities (Boelenes and Vos 2012), for example, by allowing and promoting the concentration of water entitlements/rights among a few powerful actors. The earliest human civilisations such as the Chinese, the Indus, the Egyptian, and the Mesopotamian developed along rivers especially in arid regions of the world and converted nomadic populations into settled communities. This was achieved through the gradual identification and institutionalisation of common rules and practices for water (and land) governance (Dellapenna and Gupta 2009). Since then these rules and

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practices have evolved. This book seeks to examine how these rules and practices have evolved and what can we learn from them looking in particular to a set of countries.

1.4 Research Questions This book makes an empirical analysis of current groundwater law and governance in the different socio-economic, cultural, political, and environmental contexts that exist in the six selected case study areas in Australia, the Netherlands, Costa Rica, and India. The central research questions are: • How can the conceptualisation and theorisation of groundwater law and governance be improved by examining groundwater practices while having equity and sustainability as entry points? • How can the study of groundwater practices improve the future design of groundwater law?

1.5 Methodology This book uses three research methods. First, it draws on a literature review which includes legal, social science and (ground)water governance scholarship. Second, it uses content analysis, which is concerned with the analysis of legal instruments and how they have been developed and implemented. This includes groundwater, water, and environmental laws and policies; and different regulatory mechanisms such as groundwater allocation plans, in Australia, the Netherlands, Costa Rica and India. Third, it includes an empirical component, through six case studies, which relies on 120 in-depth interviews (including policy-makers, law-makers, technicians, scientists, farmers, industries, non-government organisations (NGOs), community based organisations (CBOs) and journalists); participant observations (mainly observing people’s practices on using, sharing and protecting groundwater); and open-ended discussions during a number of meetings and activities where the different communities discuss how to address current groundwater problems. The four countries studied in this book illustrate a variety of groundwater problems, different ways to address them and diverse stages in the development and implementation of groundwater law. Within the four countries, there are six case studies as often groundwater realities differ within a country. Therefore, in both Costa Rica and Australia, two case studies are considered to also allow comparisons within a country. Despite the fact that the four countries discussed in this book are quite different they also have similarities: they operate through democratic systems and also seek to respect and implement international recognised principles such as sustainability and equity.

1.5 Methodology

7

Following Bueger (2014), in this book practice means the smallest unit of analysis of human relations. Studying, analysing, and reflecting on practices is a process of construction and reconstruction of meaning. Therefore, bringing together a reflection of practices with a reflection of customary law is pertinent. Customary law is in simple terms practices and beliefs that are so vital and intrinsic in a social system that they have become institutionalised in laws (Perreau-Saussine and Murphy 2007). Studying different groundwater practices in Australia, the Netherlands, Costa Rica, and India is compelling because it shows a wide range of political, socio-economic and environmental challenges in countries in the Global North and the Global South. Comparing and contrasting groundwater practices in countries in the Global North— like Australia and the Netherlands—with those in countries in the Global South— like Costa Rica and India—is interesting due to their different responses and the way practices have shaped law and governance and vice versa. Most interviews and participant observation data were collected between June 2013 and December 2019. The validity of case study analysis and its conclusions are checked through a process of respondent evaluation, which consisted of going back to participants—at least twice—with tentative results and refining them in light of the participants’ reactions. While presenting the case studies, anonymised quotes from the interviewees are used to highlight their perceptions about water and environmental law and their current practices. Data analysis included: (i) transcription of the interviews and storage in an electronic format; (ii) coding and data reduction: it is a process of selecting, focusing, abstracting, and transforming data in order to draw out the main themes; (iii) data display: this refers to the assembly of information in a suitable form for drawing conclusions and inferences; and (iv) conclusions drawing and verification: it is the process of deciding what patterns, explanations or causal flows emerge from the data analysis.

1.6 Structure of the Book The remainder of the book is structured into nine chapters. Chapter 2 introduces the theoretical framework contextualising the core problems of groundwater governance and law. Then a set of case studies are discussed of which the first is presented in Chap. 3 about Angas Bremer, South Australia. It examines the problem of overexploitation as well as different practices of irrigators who have helped addressing overexploitation. It also discusses the water and groundwater legal and policy reforms in Australia. Chapter 4 continues the Australian discussion introducing the case study of the South West region of Western Australia. It examines the diverse practices and approaches to groundwater governance in the state of Western Australia while comparing it with South Australia. In Chap. 5 the discussion turns to the Netherlands and the case study of Delft, which provides insights into the rare challenge of groundwater excess. The book then moves on to Costa Rica in Chap. 6. This chapter argues that despite the reputation of an environmental leader, Costa Rica has long struggled

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1 Introduction

with water equity and sustainability. Many of these concerns are covered in the case study of Guácimo, Limón, which covers the problem of pollution due to the exponential growth of pineapple plantations. Chapter 7 examines Costa Rica through the case study of the coastal communities of Santa Cruz, Guanacaste who have organised themselves in order to promote groundwater self-governance to address equity and sustainability concerns. The last case study in Chap. 8 focuses on Hivre Bazar, Maharashtra, India. It examines the struggles but also the improvements in water availability and well-being in this community in rural India. Chapter 9 reflects on the most common invisible waters governance practices. It also reflects on core differences between groundwater law in countries in the Global North and Global South. Furthermore, it provides a reflection on how to better reconceptualise and retheorise groundwater law and governance. Finally, Chap. 10 provides the conclusions of the book developing in detail core conditions that mobilise groundwater practices that should be considered in the future design of groundwater law. It also poses broader theoretical reflections on equity and sustainability.

References Altchenko Y, Villholth K (2014) Mapping irrigation potential from renewable groundwater in Africa–a quantitative hydrological approach. Hydrol Earth Syst Sci Discuss 11:6065–6097. https://doi.org/10.5194/hessd-11-6065-2014 Benda-Beckmann von Franz (2002) Who’s afraid of legal pluralism? J Legal Pluralism Unofficial Law 34(47):37–82. https://doi.org/10.1080/07329113.2002.10756563 Boelens R, Perreault T, Vos J (eds) (2018) Water justice. Cambridge University Press Boelens R, Vos J (2012) The danger of naturalising water policy concepts: water productivity and efficiency discourses from field irrigation to virtual water trade. Agric Water Manag 108:16–26 Bueger C (2014) Pathways to practice: praxiography and international politics. Eur Polit Sci Rev 6(3):383–406 Burchi S (1999) National regulations for groundwater: options, issues and best practices. In: Salman M (ed) Groundwater legal and policy perspectives proceeding of the world bank seminar technical paper. The World Bank Campuzano C, Hansen AM, De Stefano L, Martínez-Santos P, Torrente D, Willaarts BA (2014) Water resources assessment. In: Willaarts BA, Garrido A, Llamas MR (eds) Water for food and well-being in Latin America and the Caribbean. Social and environmental implications for a globalized economy. Routledge, Oxon and New York, pp. 27–53 Caponera D, Alheritiere D (1978) Principles for international groundwater law. Nat Resour J 18:589–619 Carmody E, Cosens B, Gardner A, Godden L, Gray J, Holley C, Lee L, Lindsay B, Macpherson L, Nelson R, O’Donnell E, O’Neill L, Owens K, Sinclair D (2016) The future of water reform in Australia—starting a conversation. Australian Environ Rev 31(4):132–137 Dellapenna J, Gupta J (2009) The evolution of global water law. In: Dellapenna J, Gupta J (eds) The evolution of the law and politics of water. Springer Famiglietti JS (2014) The global groundwater crisis. Nat Clim Chang 4:945–948. https://doi.org/ 10.1038/nclimate2425 Famiglietti J, Rodell M (2013) Water in the balance. Environ Sci 340:1300–1301. https://doi.org/ 10.1126/science.1236460 Fraser N (2008) Scales of justice. Reimagining political space in a globalizing world. Polity Press, Cambridge

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Gupta J, Lebel L (2020) Access and allocation in earth system governance: lessons learnt in the context of the sustainable development goals. Int Environ Agreements 20:393–410 Gupta J, Pahl-Wostl C (2013) Global water governance in the context of global and multilevel governance: its need, form and challenges. Ecol Soc 18(4):53 Hayton R (1982) The ground water legal regimes as instrument of policy objectives and management requirements. Nat Resour J 22:119–137 Hendry S (2014) Frameworks for water law reforms. Cambridge University Press Holley C, Sinclair D (2013) Deliberative participation, environmental law and collaborative governance: insights from surface and groundwater studies. Environ Plann Law J 30(1):32–55 Joy K, Kulkarni S, Dik R, Margreet Z (2014) Repoliticising water governance: exploring water re-allocations in terms of justice. Local Environ Int J Justice Sustain 19(9):954–973 Margat J, van der Gun J (2013) Groundwater around the world. CRC Press, A Geographic Synopsis Megdal SB (2017) The invisible water. arizona water resource 24:7. https://wrrc.arizona.edu/sites/ wrrc.arizona.edu/files/The-Invisible-Water_0.pdf Morris B, Lawrence ARL, Chilton PJC, Adams B, Calow RC, Klinck BA (2003) Groundwater and its susceptibility to degradation: a global assessment of the problem and options for management. UNEP Nelson R, Quevauviller P (2016) Groundwater law. In: Jakeman AJ, Barreteau O, Hunt RJ, Rinaudo JD, Ross A (eds) Integrated groundwater management, concepts, approaches and challenges. Sprinter Pahl-Wostl C (2015) Water governance in the face of global change: from understanding to transformation. Springer Perreau-Saussine A, Murphy J (2007) The nature of customary law: legal. Cambridge University Press, Historical and Philosophical Perspectives Seibert S, Burke J, Faures JM, Frenken K, Hoogeveen J, Doll P, Portmann FT (2010) Hydrol Earth Syst Sci 14:1863–1880. https://doi.org/10.5194/hess-14-1863-2010 Shah T (2008) Taming the anarchy: groundwater governance in South Asia. International Water Management Institute (IWMI) UN Environment (2019) Global Environment Outlook – GEO-6: Healthy Planet, Healthy People. Nairobi. https://doi.org/10.1017/9781108627146 United Nations Environment Programme (UNEP) (2007) Global environment outlook (GEO) 4: environment for development. UNEP United Nations Environment Programme (UNEP) (2012) Annual Report, United Nations Environment Programme. ISBN: 978-92-807-3323-5 DCP/1646/NA Utton A (1982) The development of international groundwater law. Nat Resour J 22:95–118 Villholth KG, Lopez-Gunn E, Conti K, Garrido A, van der Gun J (2018) Advances in groundwater governance. CRC Press Von Benda-Beckmann F, von Breda-Beckmann K, Spiertz H (1997) Local law and customary practices in the study of water rights. In: Pradhan R, Von Benda-Beckmann F, von Breda-Beckmann B, Spiertz H, Khadka S, Haq K (eds) Water Rights, Conflicts and Policy, International Irrigation Management Institute (IIMI) World Health Organisation (WHO) (2019) National systems to support drinking-water, sanitation and hygiene: global status report, UN-water global analysis and assessment of sanitation and drinking-water, GLAAS 2019 Report, WHO World Water Assessment Programme (WWAP) (2012) The United Nations world water development report 2012, managing water under uncertainty and risk. United Nations Educational, Scientific and Cultural Organization (UNESCO) World Water Assessment Programme (WWAP) (2019) The United Nations world water development report , leaving no one behind. United Nations Educational, Scientific and Cultural Organization (UNESCO) Zwarteveen M, Boelens R (2014) Defining, researching and struggling for water justice: some conceptual building blocks for research and action. Water Int 39(2):143–158

Chapter 2

Invisible Water Law and Governance—At Heart of Equity and Sustainability Concerns

A map of the world that does not include Utopia is not worth even glancing at, for it leaves out the one country which Humanity is always landing. And when Humanity lands there, it looks out, and seeing a better country, sets sail. Progress is the realisation of Utopias…’ Oscar Wilde (1854–1900)

2.1 Introduction This chapter explains the theoretical discussions proposed to anchor the empirical research conducted in this book. It assesses and reflects on various bodies of literature and their interconnections. It also pays close attention to how and why each theoretical framework can contribute to better understand and explain the current state of groundwater governance and law. Section 2.2 exposes the planetary boundaries and social floors frameworks to explain the current pressure exerted on water systems, and to support the argument that a ‘radical shift’ is needed. Section 2.3 introduces the sustainability literature, highlighting the relevance of a more conscious and rational use of natural resources as the only way to address the growing problems. Section 2.4 discusses equity, fairness and justice highlighting that groundwater law and governance is at the core of these discussions. Section 2.5 explains the concept of groundwater governance. Section 2.6 introduces the important role of law in shaping the governance of hidden waters. Section 2.7 stresses the relevance of practices as a way to better define and understand the complexities of groundwater law and governance. Finally, Sect. 2.8 presents how the concepts discussed along this chapter set a criterion of analysis.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_2

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2 Invisible Water Law and Governance—At Heart of Equity …

2.2 Planetary Boundaries and Social Floors—What is at Stake? Some scholars suggest that humans are transgressing the global planetary boundaries with deleterious, or even catastrophic risks to humans (Steffen et al. 2015). Planetary boundaries define a safe operating space for human societies to develop and thrive, based on the function and resilience of planet (Rockström et al. 2009). This framework clearly shows that throughout history, humanity has faced environmental constraints; however, since the Industrial Revolution, the situation has dramatically worsened; for example, using local waterways as dumping grounds for industrial and domestic waste, which has significantly eroded the environmental quality and stability (Steffen et al. 2015). Wada et al. (2010) shows that about 283 (±40) km3 of groundwater was depleted worldwide in 2000—equivalent to nearby 40% of the total volume extracted during that year; 40% of the total volume extracted was mined from non-recharging aquifers (Margat and van der Gun 2013). A planetary boundary is like a warning in an Earth system process, e.g., in the hydrological cycle. It is like a mechanism to avoid complete depletion. The boundary is intended to give society time to react to the first signs of devastation indicating that a threshold might be approaching and, consequently, also an abrupt or risky change. The warning signs may indicate the approaching of a threshold or a decrease in the capacity of a system threatening its persistence in changing conditions (Steffen et al. 2015). The planetary boundary framework has recognised nine distinct Earth processes, each of which is being clearly modified by human actions (Rockström et al. 2009): 1. 2. 3. 4. 5. 6. 7. 8. 9.

biosphere integrity land system change biochemical flows ocean acidification atmospheric aerosol loading stratospheric ozone depletion novel entities climate change and freshwater systems.

Of the nine planetary boundaries, five have now been crossed: biosphere integrity, land system change, biochemical flows, climate change (Steffen et al. 2015) and novel entities (Persson et al. 2022). Freshwater systems have not been crossed yet. According to experts, 4000 km3 /yr. has been considered an appropriate extraction average value of the boundary for a global level control (Steffen et al. 2015) which allows for regional variations depending on regional hydrological characteristics. This suggests the need to adopt limits on the extraction to not exceed the appropriate extraction value but also to limit pollution of water—which is another cornerstone problem—at the appropriate local, provincial, state, national, and international levels; otherwise, water sources may reach the planetary boundary (Rockström et al. 2009).

2.2 Planetary Boundaries and Social Floors—What is at Stake?

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Raworth (2012) introduces the concept of social floors to the planetary boundary framework. She defines social floors as social foundations that protect against critical human deprivations while at the same time understanding planetary boundaries as an environmental ceiling that avoids critical natural thresholds. Highlighting that between the social floors and the planetary boundaries lie a safe and just space for humanity. The social foundations include the following dimensions: water, income, education, resilience, voice, jobs, energy, social equity, gender equality, health and food. According to Raworth (2012) humanity is falling far below the social foundations on every dimension, for example 13% of people do not have enough food to eat. The most interesting aspect revealed by Raworth is that ending those deprivations put no pressure on planetary boundaries. For example, meeting the calorie needs of everyone living in hunger would take only 1% of the world current food supply. It is wealth (and the lack of distribution of it) and not poverty that is putting this planet under pressure (Raworth 2012). Keeping global resource use within planetary boundaries is critical for sustainability, but it cannot be done without also addressing social foundations. For example, policies, laws and regulations to achieve water sustainability should not lead to absolute lack of access to water for anybody; efforts at improving social conditions should not lead to environmental degradation. It is about a better and fairer distribution. Therefore, to boost the respect to planetary boundaries together with social and fair limits, it is pivotal to raise awareness about the vulnerability of water resources, but also of inequity and injustice. To facilitate this endeavour, policy-makers and law-makers have the responsibility to design and implement policies, laws and regulations that address sustainability and equity concerns at different levels including local, national, and international (Gupta and Pahl-Wostl 2013). This book explores the role of law in addressing sustainability and equity concerns in groundwater resources, for example in terms of allocations, and distribution of groundwater, and different instruments to protect and conserve the resource. Using the planetary boundary and social floors approaches provides an entry point to the discussion of sustainability and equity. Furthermore, it involves a clear link to the sustainability and equity frameworks discussed below, and a global wake-up call to recognise that thresholds and risks do exist, and to highlight the need to take, right now, collective responsibility to respect them.

2.3 Sustainability: What Does It Mean and Why is It Important? To begin, there is a need to reflect on what this book means by ‘sustainability’ and sustainability of groundwater resources. It is acknowledged at the outset that no universally agreed definition of the concept of sustainability exists, and that there are many different views on what sustainability is, how to measure it and how it can be achieved.

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Following some legal scholars, for the purpose of this book, sustainability is understood as a legal principle (Sands 2003; McIntyre 2007; Bosselmann 2017). This principle recognises that states should ensure the use of their natural resources in a sustainable manner. Sustainable is an adjective for something that is able to be sustained, something that is ‘bearable’ or ‘capable of being continued at a particular level’. The principle of sustainability has been known in international law at least since the 1893 Bering Sea Fur Seals Arbitration (Great Britain vs. United States 1893). Since that time, the principle has been invoked by various international courts and tribunals (Sands 2003). Moreover, it has appeared with great regularity in international policy instruments of an environmental, economic and social nature. For example, in the Rio Principles, Agenda 21, the Sustainable Development Goals (SGDs). The principle of sustainability has also been developed in the domestic environmental legislation of most states, where it is most often defined in terms of sustainable, or rational, use. When defined in these terms the question then becomes how to operationalize the principle. To operationalize, in other words to achieve sustainable use, particularly in the surface and groundwater context, SDG 6, for example, recognises the importance of this vital resource for all aspects of life and calls for the implementation of several target, actions and programs to improve its governance. The general objective of these targets, actions and programs is to achieve sustainability of global surface and groundwater resources. In addition to the Rio Declaration, Agenda 21, and the SDGs, the Convention on the Non-Navigational Uses of International Watercourses (Watercourses Convention), which entered into force on 17 August 2014 (meaning is binding), represents a significant contribution to the development of international law relating to groundwater resources. The Watercourses Convention is pivotal to groundwater protection because it supports the doctrine of hydrological unity and acknowledges the important interrelationship of surface and underground water within the hydrologic cycle. This is relevant to achieving sustainable use because the interconnectivity means that non-sustainable use in surface water can lead to not achieving sustainable use in groundwater or vice versa. For the Watercourses Convention to apply, it is not necessary for an aquifer to traverse an international boundary, so long as a hydraulically related river traverses or flows along an international border. Article 5 establishes the general principles of the Watercourses Convention, including the principle of equitable and reasonable utilisation, pursuant to which watercourse states are required to utilise an international watercourse flowing through their territory in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse states with a view to attaining optimal and sustainable utilisation. The Watercourses Convention does not provide a definition for equitable and reasonable use, or sustainable utilisation, but it does give a list of factors that are required to ensure equitable and reasonable use. This list includes: ‘[t]he social and economic needs of the watercourse states concerned; the population dependent on the watercourse in each watercourse state; conservation; protection; development and economy of use of the water resources; and the availability of alternatives, of comparable value, to a particular planned or existing use.’ (Art. 6 (1) (Watercourses

2.3 Sustainability: What Does It Mean and Why is It Important?

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Convention)). Important is to note that the Watercourses Convention does not include all groundwater resources. It only includes aquifers that are hydraulically connected to a transboundary surface water body that flows to a ‘common terminus’. Meaning that aquifers that do not have a hydraulic connection to a transboundary surface water body, i.e., fossil aquifers, are excluded from the Watercourses Convention. Yet, the importance of this Convention is that it provides guidance as to what the content of sustainability is—which is sustainable/reasonable use—and it sets a framework on what that means and how to achieve it. Nevertheless, despite the general acceptance of the principle of sustainability and the requirement of sustainable use, the principle encounters multiple critiques from many legal scholars. Critiques emphasise that despite the rhetoric of socially responsible and environmentally sustainable use, pertinent matters such as consumption, population growth and equity are avoided or manipulated in international law and policy as well as in domestic jurisdictions (Godden 2009). Moreover, legal scholars argue that its practical use in decision-making and real-life policy and law implementation is limited (Dernbach 2009). Others such as Kotzé and Du Plessis argue that the discussions around sustainability are often embedded in a political and neo-liberal capitalist rhetoric, which is usually used to legitimise socioeconomic growth at the expenses of ecological concerns (Kotzé and Du Plessis 2014). Additionally, some social scientists criticise sustainability, arguing that it remains ambivalent and that environmentalism and poverty concerns are desperately connected to the sustainability framework (Otsuki 2013; Roa-García 2014). Many environmentalists also point out that sustainability is nothing but a green mask used by industry and governments to justify and continue the ruthless exploitation of natural resources worldwide (Cuadrado-Quesada 2020). Notwithstanding the limitations around the principle of sustainability, most scholars have been widely accepted that sustainability is a key principle in natural resources use and governance—including of course groundwater. For the purpose of this book sustainability of groundwater resources refers, in simple words, to the idea that groundwater resources are being used in a way that their recharge rate is respected (Gleick 1998) and that they are not being polluted by toxic substances that may degrade the quality of the groundwater or impair the other environmental benefits derived from the resource. In many contexts, however and as indicated in Sect. 2.2, water resources (including groundwater) are being used beyond their sustainable levels and are suffering from intrusion of toxic substances (WWAP 2016). The case studies of this book illustrate a range of sustainability concerns in particular how much groundwater is being used, is groundwater being used in a way that its recharge rate is respected? Is groundwater being polluted? What toxic substances are degrading groundwater and why? The case studies also show that the sheer acceptance of environmental and (ground)water law as a social fact does not automatically solve problems of groundwater. On the contrary, coping with law raises fundamental questions about knowledge, power, authority, science, as well as social norms and values. These questions highlight the real and messy world of politics for which there are no easy nor straightforward answers.

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2.4 Equity: What Does It Mean and Why is It Important? As with the concept of sustainability there is no universally agreed definition on equity. Equity is closely link with the terms fairness and justice. The relationship between law and equity found expression in ancient laws. Law has always been interested in questions of equity. It is in this sense that equity has been incorporated and developed in international law as well as in national law. In the same sense equity has been applied by international and national tribunals, in the administration of justice (Chattopadhyay 1975). Moreover, some legal scholars describe ‘equity’ as the cornerstone of modern international environmental and water law (including groundwater). McIntyre attributes its ‘universal acceptance’ to the fact that it is normatively indeterminate, allowing all states to assert whatever interests they favour under the broad mandate of the principle (McIntyre 2007). As with sustainable use, equity or equitable use has been incorporated in many international law instruments, for example, in the Watercourses Convention on the Non-Navigational Uses of International Watercourses (discussed I Sect. 2.3) as the ‘pre-eminent legal rule’ applicable to the use and protection of international watercourses. McIntyre has also provided interesting insights to how to apply the principle of equitable use, concluding that, at least as regards water resources (including groundwater), it is ‘distributive in character’ (McIntyre 2007). Related to the discussion of the principle of equity are the principles of intraspecies equity and the inter-generational equity (French 2001). Inter-species justice places the survival of other species on an equal basis to the survival of humans. It does not suggest the moral equivalence of humans with other lifeforms, but highlights the critical importance of preserving ecosystem integrity and maintaining biodiversity (Brandon and Lombard 2005). Inter-generational equity refers to the idea that current generations must preserve the environment for future generations and ensure that it is transmitted in conditions equivalent to those in which it was received (French 2001). Social scientists have also discussed questions of equity, in particular that of social equity. Social equity arose from sociology during the second half of the twentieth century as a way to correct power imbalances between those with ‘advantage’ and those ‘without’ (Guy and Mccandless 2012). Other authors have defined the components of equity as consisting of three dimensions: (i) distribution of costs, responsibilities, rights, and benefits; (ii) the procedure by which decisions are made and who has a voice; and (iii) recognition—acknowledgement of and respect for the equal status of distinct identities, histories, values, and interests (Fraser 1996, 2005; Schlosberg 2007; Joy et al. 2014; Sikor et al. 2014; Franks and Schreckenberg 2015). Some other scholars also considers context—political, social, economic, and environmental—as a critical underlying factor (Sikor et al. 2014), or even as a fourth dimension of equity (McDermott et al. 2013). Equity in groundwater resources stresses the need to overcome social exclusion or oppression of individuals and groups, including that which is based on gender, class, racial-ethnic identity, cultural practices, religious belief, sexual orientation or disability (Boelens et al. 2018). It is becoming increasingly clear that even though

2.4 Equity: What Does It Mean and Why is It Important?

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the world is experiencing a problem regarding the extraction of groundwater, which is critical (as explained in Sect. 2.2) another core problem is related to the inequity of access and distribution of groundwater among countries and different groups in society within a particular country. For the propose of this book, water equity follows the concepts offered by Schlosberg (2004) and Joy et al. (2014), as distributional approaches that consider how processes of water/environmental change work to (re)allocate and (re)distribute incomes, resources, and power. Water equity therefore involves the dimensions of redistribution, ‘cultural justice’ or recognition (e.g., social difference and legitimacy of rights claims (Fraser 2005) and procedural and representational justice (e.g., equal opportunity of participation in political processes) (Fraser 2008). Moreover, it follows the ideas proposed by Chattopadhyay (1975) and explore how equity in access, allocation and distribution has been incorporated and developed in national law, looking in particular to environmental and water law. In this context, participation requires a societal decision-making process that allows a meaningful participation of different people taking into account the position of the least favoured or most vulnerable groups of people in society (Cuadrado-Quesada and Gupta 2019). Some scholars have argued that it is worth relating participation with leadership in groundwater governance contexts as they often come into existence together (Cuadrado-Quesada et al. 2018). It has been showed how leaders can push many to work together when it comes to natural resources governance and particularly in groundwater governance (Ostrom 2010; Holley et al. 2012). The case studies discussed in this book engage with discussions about water equity, fairness and justice. Though the early conceptualisation of water justice was around struggles against water privatisation (Joy et al. 2014), it has evolved over time and it now includes, the profound implications of combining intensified water extraction, land and water degradation, increasing competition over water access and control, and growing reliance on the role of the market to address water issues (Boelens et al. 2018). Thus, the case studies illustrate a range of these concerns, in particular who gets served first, how groundwater and rights to groundwater are distributed, who is not getting enough water and why? who is receiving polluted groundwater and why; and how public funds for infrastructure are spent. The case studies bring together the discussions of equity with those of sustainability.

2.5 Governance of Groundwater—Adding the Dots of Planetary Boundaries, Social Floors, Sustainability and Equity Defining governance is a complicated task. Some authors have said that it has become a confusing term (Pierre and Peter 1998), meaning everything and nothing at the same time. Others have defined it as the intentional shaping of the flow of events to obtain desired public goods (Holley et al. 2012) or the right disposition of things, arranged

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to achieve convenient ends (Foucault 1991). It has also been defined as the management of the course of events in a social system (Burris et al. 2008) as well as the means by which an activity or ensemble of activities is controlled or directed, in order to deliver an acceptable range of outcomes (Hirst 2000). Although there are some distinctions among these definitions, there are significant similarities. They all distinguish between the notions of governance and government. Government has been defined as a political authority/state which auspices goods (Holley et al. 2012). Governance is continuously changing (Burris et al. 2008). The tendency is to incorporate more participatory and bottom-up approaches, it is more decentralised and deconcentrated, and it includes public–private partnerships, networks, communities, and informal ways of managing challenges (Pahl-Wostl et al. 2008; Agyenim and Gupta 2010; Pahl-Wostl 2015). According to some scholars governance is, in many parts of the world, also moving from state-centric, top-down systems to a more diffuse and multilevel governance system (Gupta and Pahl-Wostl 2013; Pahl-Wostl 2015). With regard to groundwater, there are many technical definitions, including: ‘cohesive subsurface water that moves as a result of gravity’ (Schmidt and Jürgen 2012), ‘any water that has not yet exchanged with surface water’ (Schmidt and Jürgen 2012) ‘the subsurface water occupying the saturated zone’ (WHO 1992) and ‘all water which is below the surface in the ground in the saturation zone and in direct contact with the ground and soil’ (EU Water Framework Directive 2000). Definitions vary along several dimensions. Key points of differences include whether the definition proposes water in the unsaturated zone, whether it includes saline water or only freshwater. For the purpose of this book, groundwater is broadly understood as ‘water that is located below the Earth’s surface’. As emphasised in the introduction of this book, the focus is on groundwater due to the following: (i) it is the largest store of water and its extraction has considerably increased in recent years; (ii) it has intrinsic particularities, which make more challenging to govern such as slow recharge rates and invisibility; and (iii) its use has often been incentivised to address poverty (as discussed in Chap. 1). Worldwide, the governance of the invisible waters is ‘a work in progress’ (Shah 2008). It is only in the last 20 years that academic discussions around groundwater governance started to gain importance and the particular challenges faced by this resource got recognised and studied (Villholth et al. 2018) (Fig. 2.1). As academic discussions around groundwater resources gain momentum, two core definitions emerged around its governance. The first is by Foster et al. (2009), which states that groundwater governance is: ‘the exercise of appropriate authority and promotion of responsible collective action to ensure sustainable and efficient utilisation of groundwater resources for the benefit of humankind and dependent ecosystems’. The emphasis on ‘authority’ resembles early definitions of groundwater governance put forth by the World Bank (Villholth and Konti 2018). The second one is by FAO (2013), which says that groundwater governance is: “the process by which groundwater is managed through the application of responsibility, participation, information availability, transparency, custom, and rule of law. It is the art of coordinating administrative actions and decision making between and among

2.5 Governance of Groundwater—Adding the Dots …

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GROUNDWATER : Water located below the Earth’s surface.

It is the largest store of fresh water on Earth. Its extraction rates have exponentially grown over the past 50 years.

Its intrinsic particularities, make challenging to govern tits invisibility, have data availability and monitoring – at least in comparison to surface water.

Its use has often been incentivised or subsidised in order to alleviate poverty, especially in countries in the Global South

Fig. 2.1 Definition of groundwater and three reasons which make groundwater to deserve especial attention. Source Author

different jurisdictional levels—one of which may be global”. This definition built upon a definition of governance development by Saunier and Meganck (2007). According to these rather normative definitions, there must be information availability, transparency, and integration at all levels, as well as the involvement of stakeholders if sustainability is to be achieved. Whilst the definition by FAO (2013) recognises the notion of process and the importance of principles like participation and the rule of law, their definition fails to recognise the need to balance the use of groundwater by socio-economic activities and Earth systems, which is vital for sustainability. Without such a balance, groundwater use tends to favour economic activities, putting at risk ecosystems, other non-human species and the resource itself. While, Foster et al. (2009) argue that collective action is needed to ensure socially sustainable use and conservation of groundwater for all—including dependent ecosystems—their definition does not recognise the fundamental role that overarching principles—such as the rule of law or custom—have to play to shape groundwater governance. These two definitions have evolved and merged in the past years due to the authors’ recognition of their normative connotations. In essence, the changes consisted in framing governance as ‘an enabling framework and guiding principles’, and the ‘promotion of responsible collective action’. Despite all the revisions, the final definitions—FAO has published 3 slightly different definitions—include elements such as ‘socially sustainable utilisation’, ‘benefit to human kind’, and ‘ecosystems protection’. These elements could be viewed as normative and/or goal-oriented (Villholth and Konti 2018). Other scholars, like Margat and van der Gun (2013), who have conducted research on groundwater governance interventions, like local human activities and global change (including demography, equity, economic development, and climate change), provide interesting insights into the roles, linkages, and accountabilities of government institutions and stakeholders, ranging from civil, to professional, to private actors (Margat and van der Gun 2013). A prominent aspect discussed by these scholars is accountability; they highlight that it needs a specific and well-defined set of rules to be implemented, as well as transparent processes; they mention the significance of having plurality of actors in decision making, in order to guarantee

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inclusiveness (to minimise social exclusion and injustice). At the same time, they highlight the fundamental role of government in groundwater governance. Other scholars such as Villholth and Konti (2018), emphasise that the concept of groundwater governance is in its adolescent stage and that there is room for it to further mature and develop. To contribute to that end they suggest key elements that need further consideration and refinement. These conceptual elements include: Object, mode, actors and geography (Villholth and Konti 2018).

2.6 The Role of Water Law in Shaping Groundwater Governance Historically water law has been developed by customary practices. This means that certain practices were so common that they became the basis of customary law. Over the years, customary law, in most societies around the world, were gathered into written form, providing the basis of modern law. Water law developed first in the driest parts of the world particularly in the Middle East, where the use of groundwater has traditionally been common. Although there has been customary law (customs and practices) and case law (judicial decisions) with respect to groundwater, and laws on irrigation that have addressed the extraction of groundwater (Dellapenna and Gupta 2009), water law has always been focused on surface water. This implies an omission or neglect of ‘formal’ groundwater law. This has occurred both nationally and internationally. At the international level, while debates about the governance of transboundary watercourses have been taking place for many years, discussion of groundwater resources is a recent phenomenon (Eckstein and Eckstein 2003). Moreover, there has been remarkably less state practice regarding sharing of groundwater when compared to sharing of surface water (Dellapenna 2011). This is because prior to the development and spread of different technologies such as the vertical turbine pumps, groundwater was strictly a local resource as it could not be pumped in big volumes and transported to large distances (Dellapenna 2011). As some of the earliest surveys of international treaty practice concluded: ‘references to groundwater are scant and too limited in scope to propose them in terms of customary law’ (Caponera and Alheritiere 1978). Rather, the predominant focus has been on surface water, which are dealt with in numerous international treaties and agreements and other policy instruments such as the Dublin Statement on Water and Sustainable Development, the Beijing Platform for Action, Mar del Plata Action Plan, and Chapter 18 of Agenda 21. Policy and law for the governance and equitable distribution of groundwater at the international level have, thus, been slow to develop (Utton 1982). Despite the marginalisation of groundwater in international law, this precious resource has been slowly taken into account.

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Since the year 2000 the international legal community started to develop some regulation regarding groundwater. For example in 2004, the scholars of the International Law Association (ILA) adopted the non-binding Berlin Rules (formerly Helsinki Rules), which include codified and customary international law applicable to water, where they included a chapter on groundwater (Berlin Rules 2004). In 2008, the International Law Commission (ILC) adopted the Draft Articles on the Law of Transboundary Aquifers, which include a codification of principles to use and govern uniquely groundwater resources (Draft Articles 2008). These are also non-binding. Additionally, there are some regional instruments that also seek to improve the use and governance of groundwater resources such as the 2000 Programme for the Development of a Regional Strategy for the Utilisation of the Nubian Sandstone Aquifer System (NSAS), between Chad, Egypt, Libya, and Sudan; and the 2002 Consultation Mechanism for the North-western Sahara Aquifer System (SASS) between Algeria, Libya and Tunisia. There are also the 2010 Guaraní Aquifer System Agreement, between Argentina, Brazil, Paraguay, and Uruguay; and the 2015 Agreement for the Management and Utilisation of the Groundwaters in the Al-Sag/Al-Disi Layer, between Jordan and Saudi Arabia. These last two are binding. Moreover, the two international water conventions, the Watercourses Convention (explained in Sect. 2.3) and the United Nations Economic Commission for Europe (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes, (initially developed specifically for Europe but it was opened up for accession to all UN Member states in 2016) (UNECE 1997) include to some extent (albeit limited) groundwater provisions. For example, in February 2014, the UNECE adopted the Model Provisions on Transboundary Groundwater Management (Model Provisions), which ‘provide practical guidance’ and ‘assistance’ to the parties to create agreements for groundwater sustainability, management and protection. At the national level, as mentioned before the development of groundwater law has been done mainly through customary law and case law. In countries colonised by the United Kingdom (which historically follow the English Common Law), groundwater has been closely regulated with land ownership. The same happened in countries colonised by Spain, which have followed the Spanish Civil Law. Over there, the water underneath the surface has traditionally belonged to the owner of the overlying land (Utton 1982). Given that policy and legal frameworks tend to develop only in response to felt needs of a society—often in the form of a crisis/chaos—and after some time, it is no surprising that little attempt was made in most legal systems around the world to formally regulate groundwater resources (Hayton 1982). This was because by the end of the twentieth century it was still believed that groundwater resources were in a good state overall. However, in the last two decades, due to the increase of groundwater problems— like depletion and pollution—efforts have been made at the national level in the majority of countries around the world to design and implement groundwater policy, legal and regulatory frameworks aiming to address problems or minimising the opportunities for their emergence (Burchi 1999, 2018; Cuadrado-Quesada and Gupta 2021). Currently, national groundwater law regulate groundwater in many different

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shapes and forms. Among the core aspects regulated over the last two decades are: ownership, rights/entitlements, uses/users, quantity (allocations/permits), and quality (minimum standards to not cause harm), and quantity of pollutants that can discharge into groundwater sources (Nelson and Quevauviller 2016). Besides these aspects, a set of key guiding principles have been drafted to improve the design and implementation of groundwater law, including political, environmental, social, and economic principles (Conti 2017). Moreover, in her analysis Conti showed that groundwater governance frameworks (such as laws and policies) need to address groundwater’s specific physical attributes, deeply integrate social elements such as public participation, address climate change impacts, integrate capacity building and data gathering; assess pluralism between formal governance structures and customary practices; and address opportunities for sustainable groundwater use (Conti 2017). Other scholars like Knüppe and Pahl-Wolst argue that relatively little is known about how to design policy, legal and regulatory frameworks to govern groundwater resources and that even less is known about their implementation (Knüppe and PahlWolst 2011). Moreover, Nelson, argues that groundwater governance is undermined by several flaws including outdated laws and policies incorporating a narrow view of the nature of human impacts on groundwater, like depletion or pollution, and highlight the importance of including science and technical approaches in groundwater law (Nelson 2012). Moreover, other law scholars argue that equity concerns may be addressed through participation. The role of participation in groundwater governance is becoming increasingly recognised among governments (Cuadrado-Quesada and Gupta 2019). For example, in Spain and Chile, water user’s groups must be created from among the users of overexploited aquifers, with the key objective of sharing groundwater governance responsibilities with the government and, in particular, in groundwater extraction decision-making (Burchi 2018). In conclusion, groundwater law can be a key feature of its governance as can influence people’s practices and behaviour and affect the nature and details of governance within specific contexts (Cuadrado-Quesada and Rayfuse 2020). The law gives the structure within which different actors—including government, multinational, business and individuals—play their roles and provides mechanisms for decision-making (Hendry 2014). However, law can affect governance in a positive or negative way.

2.7 Practices as a Way to Reconceptualise and Retheorise Groundwater Law and Governance This book conceptualises and theorises groundwater law and governance to accommodate current practices of the hidden waters in different places and contexts around the world. The ultimate ambition is to make an empirically-based understanding of groundwater law and governance. Moreover, it seeks to contribute to the improvement of the future design of groundwater law. As explained in Sect. 2.6 groundwater law has developed mainly through customary law, therefore, this book interest to

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explore and analyse current groundwater practices. In order to achieve this, this book has as an entry point questions of sustainability and equity. Groundwater law and governance questions are, at heart, about sustainability—how much groundwater is being used, who is getting enough, who is not, and who pollutes it—and about equity, allocation, and distribution—about who gets served first, how groundwater and rights to groundwater are distributed, how public funds for infrastructure are spent, who is receiving polluted groundwater. In other words, this book proposes anchoring groundwater law and governance research in detailed descriptions of groundwater practices. This book is inspired by the definition of Zwarteveen et al. (2017), which explains water governance as: ‘the practices of coordination and decision-making between different actors around contested water distributions’. Three words deserve especial attention here: • Practices. It emphasises the interest in what people do, and not just in what they are supposed to do with regard to law and governance. This term entails an invitation to take the everyday activities—which include creativity, improvisation, tinkering, and messiness. • Contestation. This term acknowledges that most decisions about groundwater involve political choices that favour some people over others. • Distributions. It draws attention to the abovementioned political choices—about where and to whom groundwater goes and about which infrastructure/investments deserve public funds (Zwarteveen et al. 2017) (Fig. 2.2). When analysing practices, contestation and distribution it is imperative to bring to the discussion the role of groundwater law. When investigating questions regarding these concepts, such as who is getting how much groundwater, law plays an important role. In the same sense law matters when deciding about what infrastructure/investment projects deserve public funds. The practices approach provides an understanding of what different people do on the ground and why they do it. Therefore, this book aspires to bring together this practices approach with a legal analysis (i.e. the content of (ground)water and/or environmental law). Moreover, it aims to study if current groundwater practices are guiding the development of groundwater law. This is relevant because, as was mentioned in Sect. 2.6, groundwater law has historically been developed by customary practices.

Water Governance

DistribuƟon

Contested

PracƟces

‘The prac ces of coordina on and decision making between different actors around contested water distribu ons’, Zwarteveen et al (2017)

Fig. 2.2 Definition of water governance. Source Zwarteveen et al. (2017)

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2 Invisible Water Law and Governance—At Heart of Equity …

However, this is changing. Therefore, the aim of this book to examine to what extent groundwater practices continue to influence the content of groundwater law. Finally, the book aims to move forward the discussion about the future of groundwater law and how current groundwater practices can assist in this.

2.8 Conclusion This chapter examined the planetary boundaries and social floors as frameworks to explain in detail the pressure exerted on (ground)water systems worldwide as well as the social foundations that protect against critical human deprivations. It introduced the sustainability literature, highlighting the relevance of a sustainable, conscious and rational use of (ground)water resources. It also discussed the core concept of equity highlighting that groundwater law and governance problems are not only related to unsustainable use, pollution, and depletion but that they are completely intertwined with inequity, lack of access and poor distribution. It also explained the concept of groundwater governance and claimed that there is still room to further mature the concept. Furthermore, it discussed the pivotal role that law has (and has had historically) in shaping the governance of hidden waters. Finally, it presented the idea of studying groundwater practices as a way to better understand, conceptualise, theorise and highlight the complexities of groundwater law and governance. In addition, this chapter provided the theoretical framework to anchor the empirical research conducted on the six case studies discussed in the next chapters. These are the following: (Chapter 3) Angas Bremer, South Australia, Australia; (Chapter 4) South West, Western Australia, Australia; (Chapter 5) Delft, South Holland, The Netherlands; (Chapter 6) Guácimo, Caribbean, Costa Rica; (Chapter 7) Coastal Communities of Santa Cruz, Guanacaste, Costa Rica; (Chapter 8) Hivre Bazar, Maharashtra, India.

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Roa-García MC (2014) Equity, efficiency and sustainability in water allocation in the Andes: tradeoffs in a full world. Water Altern 7(2):298–319 Rockström J, Steffen W, Noone K, Persson Å, Chapin F, Lambin E, Lenton T, Scheffer M, Folke C, Schellnhuber H, Nykvist B, De Wit C, Hughes T, van der Leeuw S, Rodhe H, Sörlin S, Snyder P, Costanza R, Svedin U, Falkenmark M, Karlberg L, Corell R, Fabry V, Hansen J, Walker B, Liverman D, Richardson K, Crutzen P, Foley J (2009) planetary boundaries: exploring the safe operating space for humanity. Ecol Soc 14(2):32 Sands P (2003) Principles of international environmental law, 2nd edn. Cambridge University Press Saunier R, Meganck R (2007) Dictionary and introduction to global environmental governance. Earthscan Schlosberg D (2007) Defining environmental justice: theories, movements, and nature. Oxford University Press, Oxford Schlosberg D (2004) Reconceiving environmental justice: global movements and political theories. Environ Politics 13(3):517–540. Schmidt S, Jürgen-Hahn H (2012) What is groundwater and what does this mean to fauna? an opinion. Limnologica Ecol Manage Inland Waters 42:1–6 Shah T (2008) Taming the anarchy: groundwater governance in South Asia. International Water Management Institute (IWMI) Sikor T, Martin A, Fisher J, He J (2014) Toward an empirical analysis of justice in ecosystem governance. Conserv Lett 7:524–532 Steffen W, Richardson K, Rockström J, Cornell S, Fetzer I, Bennett E, Biggs R, Carpenter S, De Vries W, De Wit C, Folke C, Gerten D, Heinke J, Mace G, Persson L, Ramanathan V, Reyers B, Sörlin S (2015) Planetary Boundaries: Guiding Human Development On A Changing Planet (15 January). Sci Express 1–17 UNECE Convention on the Protection and Uses of International Watercourses, approved 21 May 1997, entered into force 17 August 2014, UN Doc No A/51/869 (UN Watercourses Convention) Utton A (1982) The development of international groundwater law. Nat Resour J 22:95–118 Villholth K, Konti K (2018) Groundwater governance: definition, current state and heuristic framework. In: Villholth KG, Lopez-Gunn E, Conti K, Garrido A, van der Gun J (eds) Advances in groundwater governance. CRC Press, pp. 3–33 Villholth KG, Lopez-Gunn E, Conti K, Garrido A, van der Gun J (2018) Advances in groundwater governance. CRC Press Wada Y, Van Beek LPK, van Kempem CM, Reckman JWTM, Vasak S, Bierkens MFP (2010) Global depletion of groundwater resources. Geophys Res Lett 37(20):1–5 WHO (1992) GEMS/Water Operational Guide, 3rd edn. World Health Organization, Geneva World Water Assessment Programme (2016) The united nations world water development report 2016, water and jobs, United Nations Educational, Scientific and Cultural Organization (UNESCO) Zwarteveen M, Kemerink-Seyoum J, Kooy M, Evers J, Acevedo-Guerrero T, Batubara B, Biza A, Boakye-Ansah A, Faber S, Cabrera-Flamini A, Cuadrado-Quesada G, Fantini E, Gupta J, Hasan S, ter Horst R, Jamali H, Jaspers F, Obani P, Schwartz K, Shubber Z, Smit H, Torio P, Tutusaus M, Wesselink A (2017) Engaging with the politics of water governance. Wiley Interdiscip Rev (WIREs) Water 4:1–9

Chapter 3

Groundwater Overexploitation, Changing Crops, A New Wine Region and Legally Binding Allocation Plans

Knowing that there are no victorious causes, I have a liking for lost causes: they require an uncontaminated soul, equal to its defeat as to its temporary victories Albert Camus, The Myth of Sisyphus

3.1 Introduction The previous chapter introduced the theoretical framework of this book. This chapter discusses the water legal and policy framework of Australia. Australia was selected because it is one of the driest countries on the planet and suffers from overuse and degradation of groundwater. During the past two and a half decades, the Australian Federal Government focused on bringing about a national legal and policy transformation of surface and groundwater resources. The reform process started with the 1994 Council of Australian Government (CoAG) Framework, continued with the 2004 National Water Initiative (NWI) and most recently the 2016–2026 National Groundwater Strategic Framework has been developed. This makes Australia an interesting country to explore groundwater governance and law. Moreover, this chapter introduces the first case study of the book. Angas Bremer, which is located in the state of South Australia. The case study discusses the problem of overexploitation as well as practices and innovations done by irrigators that have helped addressing some of the major groundwater problems. This chapter addresses in particular the following questions: What motivates people to get involved in groundwater governance? Who are the main people behind this involvement? What are core groundwater practices? What has been the role of law in governing groundwater resources? Do governments do enough to ensure groundwater equity and sustainability in communities? Do communities’ self-police on voluntary measures to attain equity and sustainable groundwater use?

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_3

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3.2 Australia: Setting the Scene for Groundwater Law and Governance The Commonwealth of Australia comprises the mainland of Australia, Tasmania and other small islands. It has a variety of landscapes and climates, from tropical to temperate, and from arid to semi-arid to wetlands. It is one of the driest countries with an average annual rainfall of less than 500 mm per year. Australia is a federal (Commonwealth) state with six states—New South Wales, South Australia, Victory, Queensland, Tasmania and Western Australia—and two major territories— Australian Capital territory and the Northern territory. It has a population of over 25 million. In most respects, the two territories function as states. Each state and territory has its own parliament, where laws are designed and approved. The Commonwealth Parliament can override any legislation of their parliaments. The states are sovereign entities, although they are subject to certain powers of the Commonwealth as defined by the Australian Constitution. Since the end of colonisation by England, Australia has implemented the common law, except in Aboriginal territories.1 The colonial legal system imposed in Australia to govern water resources was designed for water rich England (Shah 2008) and is fundamentally inappropriate for arid countries. English law on water as adopted in Australia recognised riparianism, which regarded the right to access surface water resources as an incident of the ownership of the riparian land, a natural or legal right accruing to that landholder. The riparian doctrine imposed limits to users in order to preserve the river/water source. Groundwater was subject to the rule of capture, which means that the first person to capture groundwater is the owner of it and could use it in an unlimited manner. Thus, contrary to the riparian doctrine, the rule of capture implied no limits on users (Gardner et al. 2009) and thus presents challenges to all countries where common law still has an influence. In the nineteenth century, both the riparian doctrine and the rule of capture were replaced by legislation in Australia. In 1886, Australia started to implement a licensing and allocation system for surface and groundwater (McKay and Marsden 2009). Each state created its own system and provided open access to the resource; there were no caps on the number of bores or amount of water drawn (Keremane et al. 2014). The surface and groundwater laws were managed by a multitude of government agencies in each state, resulting in a system very complex for the landowner. Until the 1980s, surface and groundwater resources law and policy were mainly state based, especially when referring to the conferral and regulation of water access rights. However, in the 1980s the Commonwealth gradually got involved in the development of Australian surface and groundwater law and policy (Holley and Sinclair 2016a). This increased in the 1990s, leading to Commonwealth leadership in surface and groundwater law and policy in the past two and a half decades. Thus, in 1

This book will not discuss Aboriginal Water Law.

3.2 Australia: Setting the Scene for Groundwater Law and Governance

Colonisation by England imposed the riparian doctrine (surface water),and the rule of capture (groundwater).

First Legislations 1886. Licensing and allocation systems for surface and groundwater. States started to create their own system and provided open access to the resource. Complex management system.

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1980. Commonwealth involvement in the development of Australian surface and groundwater law and policy.

Fig. 3.1 Early evolution of the Australian legislation on surface and groundwater resources

Australia the responsibility for establishing surface and groundwater law and policy rests in the states, territories and the Commonwealth (Fig. 3.1). Currently, Australia has many laws and guidelines relevant to surface and groundwater, which provides a national system implemented through state and territory governments. This produces diversity in local implementation; however, the core architecture of the system is broadly consistent across the nation.

3.3 Groundwater Law, Policy and Institutional Framework Surface and groundwater resources are regulated by a multitude of policies and legislation, it is applied state-wide or only at a regional level, and it is highly influenced by federal strategies and policies—including natural resource management law and policy, planning legislation and development controls (Holley and Sinclair 2016a). The main regulatory authority is the Minister of state. In order to govern surface and groundwater resources, Australia requires users of a prescribed resource to apply for a licence from the Minister (Gardner et al. 2009). Each jurisdiction provides for consultation when prescribing surface and groundwater resources. Once a surface or groundwater resource is prescribed, a Water Allocation Plan (WAP) is prepared by the responsible state or territory agency. Among other things, it must include the criteria by which decisions about the allocation, transfer, and use of surface and groundwater resources should be made and the conditions attached to any water licence issued (Fig. 3.2).

32 Fig. 3.2 Groundwater governance in Australia

3 Groundwater Overexploitation, Changing Crops …

Water Governance in Australia

Federal Strategies and Policies

Multitude of legislation

Applied to state level

Applied to regional level

Minister of state is the main authority

Due to water-related problems during the past two and a half decades, the Federal Government has focused on transforming national water law and policy (Norris 2011). The reform process started with the 1994 Council of Australian Government (CoAG) Framework, which established that:‘[a]ction needs to be taken to address widespread natural resource degradation in all jurisdictions occasioned, in part, by water use, and that a package of measures is required to address the economic, environmental, and social implications of future water reform’ (CoAG 1994). Key features of this framework include competition reforms, periodic monitoring, peer review at state level, separation of land and water rights, and setting aspirations for meaningful market-based reforms (Holley and Sinclair 2016a). When first approved, the CoAG Framework only referred to surface water (McKay 2007). The framework was to evolve over the following decade, through agreements reached both within and subsequent to CoAG meetings. The governments agreed to specific additions then referred to as the 1996 CoAG water reform framework, including the endorsement of principles and instruments for groundwater governance. This included: more efficient well design, a nationally consistent definition and approach to calculating sustainable yield, groundwater management plans, availability of well construction data, collecting information from high-yielding wells, pricing, basing groundwater allocations on groundwater management plan, ensuring that such plans included environmental water provisions in accordance with agreed principles; federal government expenditure, institutional arrangements, and education, among others (McKay 2007). In 2004, the Inter-Governmental Agreement on the National Water Initiative (NWI 2004) was adopted to address water depletion and drought and to enhance implementation of the principles and instruments of the CoAG Framework. The NWI drives

3.3 Groundwater Law, Policy and Institutional Framework

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the integration of groundwater and surface water and the importance of the hydrological cycle approach. It requires all state and territory governments to improve water governance. NWI has three strategic elements: regulation, planning, and markets2 (Holley and Sinclair 2016a). This chapter focuses on planning and regulation and not on water markets. Concerning regulation, the NWI indicates that state and territory governments have discretion in designing and implementing rules in order to pursue the NWI goals. Regarding planning, it establishes that states should ‘[d]etermine whether a plan is prepared, what area should be covered, the level of detail required, its term or frequency of review, and the amount of resources devoted to its preparation based on an assessment of the level of development of water systems, projected future consumptive demand, and the risks of not having a detailed plan’ (NWI 2004). The WAPs are intended to be statutory and to return overallocated or overused systems to environmentally sustainable levels of extraction. They were also set up with the principle of equity in mind as they considered, prior appropriation, historical water use rights and current use. The 2007 Water Act took a comprehensive approach to surface and groundwater governance: it defined water resources to include surface and groundwater. This Act was introduced and premised on a complete federal takeover of management of the Murray-Darling Basin (MDB).3 However, it did not receive the necessary support from the Basin states to enable the takeover to fully occur. The 2007 Water Act aims at enabling the Commonwealth, in conjunction with the MDB states, to manage the Basin water resources in the national interest; and to give effect to relevant international agreements—promoting the use of the Basin water resources in a way that optimises economic, social and environmental outcomes. It is important because it provides the legislative framework for ensuring that Australia’s largest water resource is managed in the national interest. In doing so the Act recognises that Australian states in the MDB continue to manage Basin water resources within their jurisdictions (Water Act 2007). However, it does not address social concerns associated with private markets for environmental goods and minority interests are subordinated to the needs of efficient markets. The 2007 Water Act ‘has some disconcerting characteristics, because it largely reduces the legitimate social interest in favour of economic interest’ (Martin and Kennedy 2011). This reflected the dominance of the Liberal party in the political negotiation of the 2007 Water Act.

2

The water markets in Australia have been presented as a way to bring solutions to water problems that arose under the system of public administration. However, markets propose the privatisation of the resource and enormous problems such as higher prices, exclusion in allocation and distributions; and inequities. Most water markets in Australia have occurred in the surface water context within the Murray-Darling Basin. 3 The Murray-Darling Basin drains around one-seventh of the Australian landmass, and it is one of the most significant agricultural areas. It covers most of the states of New South Wales, Victoria, Australian Capital territory, and parts of Queensland and South Australia. The basin is 3375 kms in length.

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The 2007 National Plan for Water Security consisted of a 10 billion Australian dollar investment aimed at ensuring efficient water use and improving environmental outcomes across Australia; however, its main target was the MDB. It pursued the modernisation of Australia’s irrigation infrastructure, a nation-wide program to improve on-farm irrigation technology and metering. It also fixed the sharing of water savings between irrigators and the Commonwealth Government to ensure greater water security and increased environmental flows. The 2016–2026 National Groundwater Strategic Framework came as a response of the increasing demands and impacts on groundwater resources. Its main goal is to provide a strategic vision for the next 10 years, focusing on sustaining groundwater resources and enabling ongoing access to this increasingly valuable water resource. Its core principles are: sustainable extraction and optimal use, investment confidence, and integrated water supply planning to enhance future water security. The National Groundwater Strategic Framework’s key instruments are: groundwater values, new knowledge, risk based approaches to groundwater management and use, more efficient and effective regulatory processes, information for decision-making and use of groundwater as part of the integrated water cycle (National Groundwater Strategic Framework 2016). This framework is important because it places a necessary focus on the importance of groundwater in the water reform process and heightened awareness of the value of Australia’s groundwater resources. However, most of the focus is on markets and investments and fails to address social concerns associated with markets and investments; and also ignores minorities and most vulnerable people interests (Holley and Sinclair 2016b). In sum, Australia’s policy architecture has been on a significant journey since 1994. This journey reflects the multiplicity of complex legislation and policy, at the federal and state levels, which often makes difficult to work with and to address surface and groundwater concerns, especially environmental and social challenges (Holley and Sinclair 2018). Table 3.1 summarises the development of surface and groundwater legal and policy frameworks in Australia. Lead by inter-Government agreements and national oversight, the states and territories continue to implement the NWI and related reforms. Important is to note that not all states and territories have done it to the same degree, and there has been considerable experimentation with various legislative frameworks and statutory and non-statutory instruments. Such innovative and robust developments had contributed to position Australia as a ‘world leader’ in surface and groundwater reforms (Garrick and Bark 2011; Holley and Sinclair 2016a). However, in the past few years some legal scholars have argued that Australia is no longer seen as leader in water reform. These scholars highlighted mainly two significant weaknesses. Firstly, there has been a lack of attention on the use of law and governance in Australia’s water policy, in particular a lack of multi-disciplinary integration of the legal dimension. Secondly, progress on water reform has stalled as it is no longer a priority for review Federal and state governments (Holley and Sinclair 2018). Following this introduction of Australia groundwater law, policy and institutional framework, the next sections discuss groundwater law in South Australia and groundwater governance and law in the Angas Bremer, which is the first case study of Australia.

3.4 Groundwater Law in South Australia

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Table 3.1 Development of surface and groundwater legal and policy frameworks in Australia Year

Legal and policy frameworks

1788–1885

Rule of capture: the first person to ‘capture’ groundwater was the owner and could use it in an unlimited manner Riparian doctrine: the owner of the land was the owner of surface water

1886

The implementation of licensing and allocation systems began

1994

A reform started with the Council of Australian Government (CoAG) Framework, which mandated action ‘to address widespread natural resource degradation in all jurisdictions occasioned, in part, by water use and that a package of measures is required to address the economic, environmental and social implications of future water reform’. This reform omitted groundwater resources

1996

The National Framework for Improved Groundwater Management was developed. It included sustainability concerns, licensing of drillers, groundwater and surface water management, addressing the problem of inefficient well design, setting up water markets, sustainable yield and allocation linkage, availability of well construction data, collecting information from high-yielding wells, pricing, federal government expenditure, institutional arrangements and education

2004

The InterGovernment Agreement on the National Water Initiative (NWI) was adopted as a response to continuing water depletion and drought conditions, as well as the remaining work needed to implement the goals of the CoAG framework. The NWI recognises the integration of groundwater and surface water

2007

The Water Act was enforced. It was the first piece of legislation to take a comprehensive approach regarding surface and groundwater in Australia Also, a comprehensive National Groundwater Action Plan was initiated by the Water Commission, to improve the knowledge and understanding of groundwater

2016

The 2016–2026 National Groundwater Strategic Framework provides a strategic vision, focusing on three objectives: sustainable extraction and optimal use, investment confidence and planning and managing groundwater now for the future

Source Author

3.4 Groundwater Law in South Australia In 2020, the 2019 Landscape South Australia Act replaced the 2004 Natural Resources Management Act, as the key framework for governing the state’s land, water, and biodiversity across the state. The 2004 Natural Resources Management Act was in force when the data collection took place. Among the main objectives of the 2019 Landscape South Australia Act are: to set out the requirements for water allocation planning through the development and implementation of statutory water allocation plans (WAPs). The development and implementation of statutory WAPs has been largely enforced in South Australia (Hamstead, Baldwin and O’Keefe 2008). The responsibility for water planning lies with the regional Landscape Boards (Landscape Act 2019, s 4 (52)). The 2019 Landscape Act promotes education and support mechanisms to increase people´s capacity for governing natural resources. It also establishes that the preparation and maintenance of the WAPs should involve consultation (Landscape Act 2009, s 49). The regional Landscape Boards are intended to promote community

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participation. However, the Act does not explicitly recognises the significance of equity or fairness. The regional Landscape boards must work with local committees, to get their advice. An example of this kind of committee is in Angas Bremer. The core objects of 2019 Landscape Act are: to support and enhance ecologically sustainable development by establishing an integrated scheme to promote the use and governance of the natural resources. In doing so the Act: (i) recognises and protects the intrinsic values of landscapes; (ii) supports the state’s primary production and other industries, a sustainable state economy, resilient communities, natural and built environments, and the interests of Aboriginal peoples; (iii) provides for the protection, enhancement, restoration and sustainable use and governance of land, water, and native fauna and flora, (iv) promotes, protects and conserves biodiversity; (v) recognises that climate change is a significant factor in our environment; (vi) provides for the prevention or control of impacts caused by pest species; (vii) promotes the collaborative management of native animals that affect environments, people or industries; (viii) provides educational initiatives and provides support mechanisms to strengthen the skills, knowledge and capacity of people; and (ix) supports initiatives to facilitate the increased capacity of people (Landscape Act 2009, s 2 (7)). This law shows the importance giving to the concept of sustainability, incorporating in the discussion the protection and governance of catchments and the sustainable use of land and water resources (including groundwater) as well as a way to enhance and restore or rehabilitate land and water resources (including groundwater) that have been degraded. It also highlights the importance of safeguarding the life supporting capacities of natural resources and of avoiding, remedying or mitigating any adverse effects such as climate change of activities on natural resources.

3.5 Local Collective Groundwater Governance Angas Bremer district is located near the town of Strathalbyn, beside Lake Alexandrina, 60 kms south-east of Adelaide, the capital of South Australia. It is named after the Angas and the Bremer rivers which flow through it. Groundwater resources have been extensively used for irrigation since the late 1950s. Since then, the area has undergone dramatic changes in land, surface and groundwater use. High groundwater extractions in the 1970s and 1980s induced lateral inflow of saline groundwater. Currently, their biggest crop is wine-grape. This case study illustrates problems such as using groundwater resources beyond their sustainable limits while also showing practices fashioned by local collective governance approaches, which facilitated shares, distribution, and equity among irrigators (Fig. 3.3).

3.5 Local Collective Groundwater Governance

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Fig. 3.3 Map illustrating the case study of the Angas Bremer and showing the prescribed wells area. Source Author

3.5.1 Background and Context The Angas Bremer district lies in the rain shadow of the Mt Lofty Ranges and has a relatively low annual rainfall of 400 mm. Rainfall occurs mainly from April to October. The Angas Bremer district covers 7100 ha. The local community consists of 160 small farmers and their families. The farmers are white, Anglo-Saxon, middle class, and most of them are now dedicated to the wine-crops. Farming crops such as lucerne and potatoes, and other extensive farming practices such as dairy farming had increased groundwater use and salinity in the late 1970s. By the early 1980s, the annual use of groundwater for irrigated agriculture reached 26,600 megalitres, about four times the estimated annual recharge (6000 megalitres) causing a water crisis (Thomson 2008) that affected local social, economic and ecological concerns. The Angas Bremer Water Management Committee (ABWMC) has an important role in water governance. It was formed in 1979, as a statutory body pursuant to the Water Resources Act 1977 Under the new Water Resources Act (1997) the ABWMC was superseded by the newly formed River Murray Catchment Water Management Board. In 2004, the NRMA gave statutory powers to the Natural Resources Management Boards (NRMB), a government agency. In 2019 gave statutory powers to the

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regional landscape boards. Thus, the role of the local committee was diminished and it had no longer statutory powers or a defined role in developing and implementing policy, regulation and planning instruments. However, the community still wanted to be part of the decision-making processes regarding surface and groundwater issues, so a publicly elected voluntary community group, the ABWMC was created in 1997. The group is still active today. In addition to the 2019 Landscape Act, the WAPs establish the rules and procedures to use and govern surface and groundwater sustainably. Surface and groundwater planning through the WAP is an important process for assisting governments and communities to determine water use, management and allocation decisions in order to meet economic, environmental, and social objectives. The ABWMC, the process and discussion of designing and implementing the WAPs, and the irrigator’s practices that they wanted to have as ‘binding rules’ in the WAPs will be the main features discussed in the stories of the Angas Bremer case study. The next subsections involve: (i) the story about how the irrigators were empowered, which includes a discussion of who were the key actors in governing groundwater resources in Angas Bremer, what decisions did they make to use, distribute and share water, what have been their main groundwater governance concerns regarding equity and key achievements; and (ii) the story of how to return and maintain aquifers to a sustainable level of extraction, which includes key sustainability concerns and some sustainability successes in the region.

3.5.2 Empowered Irrigators The government of South Australia, Ministry of Water, and the ABWMC are the key actors in the story of how the main groundwater users, the irrigators, got empowered and started to shape groundwater law and governance in Angas Bremer. Involvement and participation by the ABWMC and the entire community arose first as a result of a consultation process conducted by the government of South Australia (e.g., Ministry of Water in accordance with the 2019 Landscape Act (and previously with the 2004 NRMA) for creating a WAP). Respondents suggested that the organisation of the government regarding the planning of the meetings and the distribution of information about groundwater resources and the importance of designing and implementing the WAP had been somehow positive. Most of them mentioned that it had been encouraging to receive information and work with technical experts from the government, so they could learn about how groundwater systems work. As expressed by a participant, ‘we were there when the plan [water allocation plan] was being designed…we told the government our interests…we participated in the actual decision-making of the plan…’ (Interview Australia No. 2 Irrigator, 10 April 2013). Second, respondents suggested that the meetings were open and the government was willing to engage in discussion and pursue a form of rough balance of interests. This was clearly evidenced by the inclusion of irrigator practices in the WAP. As one irrigator explained: ‘those have been our practices for long …the

3.5 Local Collective Groundwater Governance

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exchange of groundwater licences for lake water licences, the aquifer storage and recovery, doing revegetation, and using tools based on scientific data—such as the FullStop device—which detects whether the soil is wet and measures the amount of salt, or other chemicals’ (Interview Australia No. 4, Irrigator, 11 April 2013). Five key issues were identified as enablers of local/communal collective groundwater governance in this case study, namely: groundwater crisis/problems (over-exploitation and rising salinity), participation, leadership, being a small-scale and homogenous community, and funding of government institutions. The community members’ understanding that they were facing a groundwater chaos triggered their involvement in groundwater governance. As argued by one interviewee, ‘Everybody could see there was a problem, the department became involved and obviously we had to take less water, we didn’t know how the system worked. I think the nutshell of that was that the community saw that there was a crisis’ (Interview Australia No 9, Irrigator, 12 April 2013). As argued by some scholars (Lopez-Gunn 2003; Cuadrado-Quesada 2018), crisis often provides the impetus for people to come together to create possible solutions to address pressing concerns. As another participant explain it: ‘The community was passionate and active… We had a crisis that forced us not to just sit back, but I think the concept of the community was we’ll be part of the fix and part of how to fix it’ (Interview Australia No 11, Irrigator 13 April 2013). The Angas Bremer case study shows access to information (provided by government official e.g., hydrologists) and wiliness to learn, provided knowledge and awareness to the irrigators; then, based on that capacity, they were able to design and implement initiatives in the WAP, such as to reduce groundwater allocations and change to more efficient water crops from lucerne and dairy farming to wine grapes. Angas Bremer was facing a water quantity problem due to the overuse resulting from the lack of understanding of groundwater by the irrigators. The crisis unlocked people’s involvement, organisation and participation, which in turn facilitated social/community input in groundwater governance. The findings confirm what has been suggested by others: crisis can motivate citizens to take action on governing groundwater (Ostrom 1990, 2010; Gunderson et al. 1995). Another factor that appeared to have contributed to collective groundwater governance was an active community leadership. The ABWMC was fortunate to have many exceptional leaders (e.g. former mayors) among its members; they motivated the entire community to get involved in groundwater governance as the only way to provide solutions. Even though the leadership has changed over time, the ABWMC still has strong leaders. Some scholars have argued that it is worth relating leadership with crisis because they often come into existence together (Lopez-Gunn 2003; Cuadrado-Quesada and Gupta 2019). This argument is confirmed by the findings of this case study. For example, an interviewee pointed out: ‘I think leaders arise when there’s a crisis…you know, somebody rises up and does the job…, and if they’re encouraged by the community and they can see they can get a result in if it’s a good hard fight they’ll keep going, but nobody rises up to be a leader if there is no crisis.’ This quote confirms the important connection between crisis and leadership to accomplish social/community equity, particularly in groundwater governance in the

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context of Angas Bremer. The findings from the Angas Bremer case study illustrate how leaders arose when there was a problem or something required to be fixed; and how these leaders tend to foster public participation, inclusion, and overall equity. Moreover, the findings show how best to support leaders, for example providing them information and technical experts’ support, so they can learn how groundwater systems actually work. Besides crisis, community participation and leadership, another factor that facilitated collective governance in this case study was the fact that the Angas Bremer community is small-scale and homogenous. For most of the inhabitants, working together and sharing water was easy due to the fact that they have the same interests, and have smooth working and personal relationships. It seems that equity within the Angas Bremer community was not a matter of important discussions, as the 160 irrigators and their families had similar shares and benefits from water, and the legal requirements apply to everyone in the same way. In Angas Bremer, the irrigators, the ABWMC, and the entire (small-scale and homogenous) community were able to include many of their practices and interests in the WAP, because they talked to the government with a unified and strong voice. It is necessary to reflect on power relations in this context. The Angas Bremer is an exceptional situation, because power relations between different stakeholders are relatively balanced. In this region there was no presence of big national or multinational corporations, which tend to be powerful actors, which dominate decisionmaking. The main companies in the region are small and locally owned wineries. This is reflected also in the outcomes of the WAP. The balanced division of power was due to the empowerment of the irrigators, in part built by the government, through consultation and participation (e.g., teaching the irrigators how to monitor the groundwater levels), but also due to the irrigators’ willingness to learn and to their awareness. It seems that these two characteristics—a government that shares information and knowledge and a conscious recipient who is willing to learn and do things—are fundamental for groundwater governance. Finally, with regard to government funding, this case study shows the importance of investing in consultation, sharing knowledge, dialogue, and participatory processes to better involve groundwater users in the designing of legal and regulatory frameworks. It will provide a better implementation of such instruments once they are in force, as they will contain current groundwater practices. The participant observation along with the interviews conducted during fieldwork show how ABWMC significantly shaped groundwater law and governance. First, the irrigators used the ABWMC to ensure that many of their interests were taken into account in the design and implementation of the WAPs, which included significant requirements for water licences, like monitoring and reporting. For example, the irrigators had the practice of monitoring and reporting long before it was introduced in to the WAPs. This illustrates how practices shape the law.

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3.5.3 Returning Aquifers to a Sustainable Level As mentioned before, the Angas Bremer committee was first formed as a statutory body pursuant to the Water Resources Act 1976; and it was responsible for the development and the delivery of policies and regulation to manage the Angas Bremer Proclaimed Wells Area, a groundwater resource that had been used beyond its sustainable limits when the area was proclaimed in 1981 (Muller 2006; Thomson 2008). Moreover, back then the region—and the entire state—was suffering a severe drought. The unsustainable use led not only to quantity problems but also to a decrease in groundwater quality, resulting in saltier groundwater. This saltwater evidenced that groundwater was being used beyond its sustainable limits. In response, during the following years the committee and the community worked intensively to develop and implement innovative practices to counter overexploitation and rising salinity that were included in diverse WAPs through the years. The success of their groundwater practices to reduce overuse and improving quality were summed up by one interviewee as follows: ‘[w]e developed a lot of water management practices, water conservation practices, measurements, annual reporting came in, we brought our own annual reporting and we are still doing it today. Terrific policies like revegetation policies, changing our water use from groundwater to River Murray surface water…’ (Interview Australia No. 17, Irrigator 15 April 2013). One initiative implemented by the irrigators and the community was reducing groundwater allocations. It was the first step towards groundwater sustainability in Angas Bremer. Having less groundwater to use, most of the irrigators started to look at crop diversification; they researched crops that were more water efficient. This came at the same time of a boom in the wine industry in South Australia, thus, most of the irrigators started to grow wine grapes. As mentioned by an interviewee: ‘[w]e changed our crops, we went out of irrigated lucerne, virtually none grown now, we’re using more water-efficient crops, mainly vineyards, but there’s still some horticultural crops but much more efficient than lucerne hay…we went from something like six or seven thousand hectares to zero during that time, predominantly driven by severely reduced water use’ (Interview Australia No. 18, Irrigator 15 April 2013). Another measure was exchanging groundwater licences for surface licences and thereby use different water sources. As pointed out by a participant: ‘[t]hey could swap groundwater licences for surface licences. That was a big plus, and everything we did was giving people…as well as saying, well if you don’t do anything we’re going to cut water licences, because it’s only sustainable at this level, and you’re going to lose 30, 40% sort of up to whatever percent of your actual water’ (Interview Australia No. 19, Irrigator 16 April 2013). Irrigators also established storage and recovery systems, to improve groundwater quality. The overuse of groundwater caused the water level in some wells to fall by up to 10 m and well-salinities to rise. Irrigators set out to stop the declining groundwater levels and the rising water salinity by undertaking experiments to increase the aquifer recharge rate on their property. This was achieved by directing winter floodwater into

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their bore. This process has become widely used and is known as aquifer storage and recovery (ASR). In order to encourage the use of ASR in Angas Bremer, the following instruments were included in the WAP: • the right to extract 50% of the volume stored; • a roll-over credit lasting for up to three years; • allowing the use of 30–50% of any volume that had been stored but not used. As one interviewee commented, ‘[t]here’s a lot of recharge going on here…they were able to get a credit for the water they’d actually recharged into the aquifer…as well as making the water better quality, they were able to have more water available for them if they wanted to use it in a particular year’ (Interview Australia No. 21, Irrigator 17 April 2013). In this case study groundwater protection areas were established, facilitating the promotion of sustainability in the region. Protection areas were revegetation areas that helped to expand the area of deep-rooted, native, non-irrigated vegetation in order to improve the quality of the water-table. The root-zone of the vegetation intercepts winter floodwaters, assists with irrigation drainage and draws water from the watertable. The revegetation management action requires each irrigator to maintain a minimum of two hectares of deep-rooted, native, non-irrigated vegetation for every 100 ML of allocated water. These revegetation areas are a legal requirement for their water licence. As one participant said: ‘[s]o, as a community we came up with this revegetation idea…we spent two years calculating the potential water total rises, the water going on, how much was being used, how much leakage there could be, time frames, how many trees would you need, and there was enormous amount of work to get in there…we went down and met the Minister for Water…and said to him that we want to put, as part of our licence conditions, that we have to plant 2 ha of native, non-irrigated vegetation for every 100 ML of water’ (Interview Australia No. 16, Irrigator 15 April 2013). Moreover, in Angas Bremer annual monitoring and reporting of groundwater use was implemented to improve sustainable use, given that it encourages record keeping by irrigators. Monitoring and reporting are legal requirements for groundwater licences. Each irrigator collected and recorded data, including annual groundwater metre readings and the area of crops under irrigation. Every year, public meetings and training workshops have been held to present, discuss and analyse the information. As pointed out by a participant, ‘[w]e had our own annual reporting here before anybody…these are the sort of policies that we introduced by ourselves…that has helped to make this region more sustainable…’ (Interview Australia No 20, Irrigator 16 April 2013). This case study shows how profit-motivation can also contribute to the achievement of sustainability. This factor is a rare phenomenon since profit-motivation in businesses usually leads to unsustainable use of water resources (Hoekstra 2014);

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for example, not taking any precautionary measures e.g., monitoring, is always more profitable in the short run than implementing measures to use groundwater—or any other natural resource—in a sustainable manner. What makes this case study unique is that profit-motivation helped to achieve more sustainable groundwater use. As expressed by one participant, ‘[w]ell, the thing is traditionally a lot of that area was dairy farming…then, we changed to wine grapes during the wine boom…, which was profitable…and that was one of the drivers’ (Interview Australia No. 16, Irrigator 15 April 2013). Finally, a major factor that helped to promote sustainability was continued government funding to research, development and knowledge about groundwater systems (Baldwin et al. 2012). Thanks to it, irrigators were able to carry out robust monitoring to better understand and manage groundwater, which led to the implementation of the previously mentioned practices. Usually, small irrigators/farmers do not have enough economic resources to finance scientific studies or technical advice. Thus, this case study verified what has been argued by scholars such as Schlager, regarding the need of government support and funding for irrigators in order to effectively address groundwater governance challenges (Schlager 2007). The findings show that, without appropriate external assistance, groundwater irrigators would not understand the complete functioning of groundwater resources or the effects of their pumping on the entire efficiency of the resource. Thus, it is critical that irrigators and government agencies (e.g., hydrologists) work together. This was seen in Angas Bremer, confirming the importance of such collaborations. The findings also confirm Richardson et al. (2011) findings that even though stakeholders like irrigators need government support and funding, they are capable of understanding groundwater management and governance issues and determine priorities (Richardson et al. 2011). Nevertheless, the Angas Bremer is suffering from declining funding and support from the government. This topic was repeatedly mentioned by all the interviewees. As one said: ‘I think it’s very important for the Angas Bremer committee to continue…and for government support to continue…because you don’t monitor for a few years and go yeah, it’s fine. This is a long-term thing, so that’s why constant monitoring is important and [so is] continuous government support…’ (Interview Australia No. 1, Irrigator 10 April 2013).

3.6 Conclusion This chapter provided a discussion of the legal and policy frameworks, as well as the institutional structures for groundwater governance in Australia. It showed core challenges and opportunities in groundwater law and governance in Australia. Moreover, it discussed the particular situation of groundwater law and governance in South

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Australia where there is an updated—from 2019—and holistic legal framework, the Landscape Act, and statutory WAPs. The 2019 Landscape Act recognises the relevance of sustainable use in many different ways, however it is questionable whether it has the same coverage of equity. The chapter also highlighted the Angas Bremer case study, which illustrated many different groundwater practices and some of their positive features. The discussion of the case study demonstrated that, in order to attain equity, and sustainability in groundwater governance, factors like crisis (scarcity, salinity), community participation, leadership, government funding, as well as being a small-scale and homogenous community, were critical. It was particularly revealing that the level of engagement spurred by groundwater crisis, ended up in groundwater law reform, such as the WAP and water licence requirements taking into consideration the irrigator’s practices. The findings of the Angas Bremer case also demonstrate that a better understanding of groundwater resources leads to changes in use, such as a more sustainable/reasonable use, especially when crisis and community participation (motivated by awareness) come together. These factors boost the development of learning and knowledge and the opening up of ‘new’ governance practices for groundwater resources, including more participatory, equitable, accountable and sustainable ones. For example, in Angas Bremer the crisis served as a catalyst to spur more sustainable groundwater usage patterns. The irrigators understood that there were quantity and quality problems due to overuse, thus they changed their traditional crops, e.g., lucerne, for others that need less water, e.g., wine grapes. Linked to these factors, it is important to mention that government support was essential to achieve social involvement, participation and sustainable use. The Angas Bremer case shows that when irrigators work together with government agencies, social, economic, and ecological outcomes tend to increase. In this case study, the government institutions fostered participatory processes and provided funding and advice, which is required to monitor and understand the behaviour of groundwater. Factors that lead to success in the Angas Bremer case study, as has been discussed already, tend to change over time. Therefore, more proactive factors for addressing equity and sustainability concerns in groundwater governance are needed. Firstly, government agencies that deal with control of groundwater resources need to provide more public servants, as well as adequate and ongoing funding for this herculean task. Secondly, government support for research is needed in order to raise awareness of the current groundwater situation and for the development of techniques to manage avoidable groundwater crisis. Additionally, funding (from government and nongovernment actors) must be available to support leaders implementing mechanisms such as monitoring and the establishment of protected areas.

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Despite the ABWMC has contributed enormously to improved groundwater governance and sustainability, facilitating community involvement, participation, and social inclusion, the ABWMC is facing noteworthy challenges. First, community participation in surface and groundwater governance has decreased, because the issues that sparked community engagement have been resolved, the crisis has already passed. Second, the ABWMC is facing the common challenge of voluntarism: lack of money and fewer volunteers with time to get involved. Since fieldwork was conducted in this area (2013–2016) a lot of changes have happened. First, the water allocation plan for the Eastern Mount Lofty Ranges was adopted in 2013. The plan—as the predecessor—was developed by the community and the South Australia Murray-Darling Basin Natural Resources Management Board with input from landholders, scientists, and all three levels of government. This plan covers the Eastern Mount Lofty Ranges prescribed area and incorporates the Angas Bremer Prescribed Wells Area. Currently, the Eastern Mount Lofty Ranges Water Resource Plan (EMLR WRP) is being reviewed by the MDB Authority.4 This proposal will cover the area located at the lower end of the Murray-Darling Basin river system and covers 3588 km2 . It extends from the Marne River catchment— in the north—to the Currency Creek catchment—in the south. The EMLR WRP area defined by the Commonwealth Basin Plan, covers the same area as the Water Allocation Plan Eastern Mount Lofty Ranges plus The Water Allocation Plan for the Marne Saunders Prescribed Water Resources Area, which was developed under South Australian legislation. The table below summarises the Angas Bremer Case Study (Table 3.2).

4

For more information see Government of South Australia. https://www.environment.sa.gov.au/ topics/river-murray/basin-plan/water-resource-planning/eastern-mount-lofty-ranges-region

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Table 3.2 Summary/Angas Bremer Case Study, South Australia, Australia Abstract/Angas Bremer, South Australia, Australia Location: Contextual Factors: Angas Bremer, in South Australia, near the • Australia is one of the driest countries in the town of Strathalbyn, beside Lake Alexandrina, world • In the 1980s the Commonwealth of Australia 60 kms south-east of Adelaide (the capital of gradually got involved in the development of South Australia), in the rain shadow of the Mt Australian water policy. There is Lofty Ranges Commonwealth leadership in water policy in recent years and the states are responsible for water policy and law • The country has a world leading water quantity and quality management framework, which provides a national system implemented through state and territory governments • The innovative and robust developments of water legislation had contributed to position Australia as a world leader in surface and groundwater reforms; however this has changed in the past few years because there has been a lack of attention on the use of law and governance in Australia’s water policy and water reform is no longer a priority for Federal and state governments • South Australia provides an example of an encouraging implementation of water reforms within Australia • Angas Bremer has relatively low annual rainfall: 400 mm • The community has experienced severe problems related to the sustainable use of groundwater resources • Equity within the Angas Bremer community was not a big concern as the 160 irrigators and their families had similar shares and benefits from water. However, just outside Angas Bremer many equity problems become evident as there are some industries which have large water allocations Situation: • There is a community of around 160 small irrigators/farmers and their families. The main economic activity in the region is agriculture • Groundwater resources have been extensively used to irrigate crops (like irrigated lucerne and potatoes) since the late 1950s. High groundwater extractions in the 1970s and 1980s caused overuse and induced lateral inflow of saline groundwater. The problems resulted from the lack of understanding of groundwater by the irrigators. This all came together with a severe drought that affected the entire state. By the beginning of the 1980s, the annual use of groundwater for irrigated agriculture reached about four times the estimated annual recharge. This caused a crisis • The irrigators got involved—due to the crisis—in the search for solutions and were supported by the government. The irrigators ensured that many of their interests were taken into account in the design and implementation of the water allocation plans (continued)

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Table 3.2 (continued) Abstract/Angas Bremer, South Australia, Australia Results: • Access to information (provided by government officials e.g., hydrologists) and wiliness to learn, provided knowledge and awareness to the irrigators and made them able to include initiatives in the WAPs • Irrigators understood the quantity problem due to overuse and changed their traditional crops—e.g., lucerne—for more water efficient crops—e.g., wine grapes • They began changing groundwater licences for surface licences, in order to use different water sources, such as rivers and lakes • Irrigators established storage and recovery systems, to improve groundwater quality • Groundwater protection areas were established. These are now a legal requirement for water licences • Annual monitoring and reporting of groundwater use were implemented. It is a legal requirement for groundwater licences Source Author

Legal and Policy Frameworks 2004 Intergovernmental Agreement on the National Water Initiative (NWI), Commonwealth of Australia. 2007 Water Act, Commonwealth of Australia. 2016 National Groundwater Strategy Framework, Commonwealth of Australia. 2019 Landscape Act, Government of South Australia.

Interviews Conducted Australia, South Australia Interview No. 1, Irrigator 10 April 2013. Interview No. 2, Irrigator, 10 April 2013. Interview No. 4, Irrigator, 11 April 2013. Interview No. 9, Irrigator 12 April 2013. Interview No. 11, Irrigator 13 April 2013. Interview Australia No. 16, Irrigator 15 April 2013. Interview No. 17, Irrigator 15 April 2013. Interview No. 18, Irrigator 15 April 2013. Interview No. 19, Irrigator 16 April 2013. Interview No. 20, Irrigator 16 April 2013. Interview No. 21, Irrigator 17 April 2013.

References Baldwin C, Tan P, White I, Hoverman S, Burry K (2012) How scientific knowledge informs community understanding of groundwater. J Hydrol 474:74–83 Council of Australian Government (CoAG) (1994) Communiqué Hobart 25 February 1994, Attachment A Water Resources Policy, AGPS, Canberra. http://www.environment.gov.au/resource/cou ncil-australian-governmentswater-reform-framework

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Cuadrado-Quesada G (2018) Challenges and opportunities at implementing groundwater governance in Australia: case studies from South Australia and Western Australia. Environ Policy Law J 35:588–605 Cuadrado-Quesada G, Gupta J (2019) Participation in groundwater governance—outlining a path to inclusive development. Water Policy 21(5):1050–1064 Gardner A, Bartlett R, Gray J (2009) Water resources law. Lexis Nexis Garrick D, Bark R (2011) Comparative perspective on basin governance in the Murray-darling basin: insights from the Western United States. In: Connell D, Quentin G (eds) Basin futures, water reform in the Murray-Darling Basin. Gunderson L, Holling C, Light S (1995) Barriers and bridges to the renewal of ecosystems and institutions. Columbia University Press Hamstead M, Baldwin C, O’Keefe V (2008) Water allocation planning in australia, current practices and lessons learned, waterlines occasional Paper No 6. National Water Commission, Australian Government Hoekstra AY (2014) Water scarcity challenges to business. Nat Clim Change 4:318–320 Holley C, Sinclair D (2016a) Rethinking Australian water law and governance—successes, challenges and future directions introduction. Environ Plann Law J 33:275–283 Holley C, Sinclair D (2016b) Governing water markets: achievements, limitations and the need for regulatory reform. Environ Plann Law J 33(4):301–324 Holley C, Sinclair D (eds) (2018) Reforming water law and governance: from stagnation to innovation in Australia. Springer Keremane G, McKay J, Wu Z (2014) Achieving ecologically sustainable development in multilevel water governance regimes, the case of the Murray-darling basin. In: Kidd M, Feris L, Murombo T, Iza A (eds) Water and the law: towards sustainability, IUCN Landscape Act (2019) Government of South Australia Lopez-Gunn E (2003) The role of collective action in water governance, a comparative study of groundwater user associations in La Mancha aquifers in Spain. Water Int 28(3):367–378 Martin P, Kennedy A (2011) Water management in rural Australia, the human rights dimension. Human Rights Defender 20(2):13–15 McKay J (2007) Groundwater as the Cinderella of water laws, policies, and institutions in Australia. In: Ragone S (ed) The global importance of groundwater in the 21st century: proceedings of the international symposium on groundwater sustainability. National Groundwater Association McKay J, Marsden S (2009) Australia: the problem of sustainability in water. In: Dellapenna J, Gupta J (eds) The evolution of the law and politics of water. Springer Muller K (2006) A partnership approach to environmental stewardship in Langhorne creek, South Australia. Second national wine industry environment conference and exhibition, South Australia, pp. 25–26. National Groundwater Strategic Framework (2016) Commonwealth of Australia National Water Initiative (NWI) (2004) Intergovernmental agreement on a National Water Initiative, Australia, Council of Australian Governments (COAG) Norris R (2011) Environmental water, the benefits of ecological goods and services. In: Connell D, Quentin G (eds) Basin futures, water reform in the Murray-Darling Basin. ANU Press Ostrom E (1990) Governing the commons: the evolution of institutions for collective action. Cambridge University Press Ostrom E (2010) Polycentric systems for coping with collective action and global environmental change. Glob Environ Chang 20(4):550–557 Richardson S, Evans R, Harrington G (2011) Connecting science and engagement: setting groundwater extraction limits using a stakeholder-led decision-making process. In: Connell D, Quentin G (eds) Basin futures: water reform in the Murray-Darling Basin. ANU Press Schlager E (2007) Community management of groundwater. In: Giordano M, Villholth K (eds) The agricultural groundwater revolution: opportunities and threats to development. CABI Shah T (2008) Taming the anarchy: groundwater governance in South Asia. International Water Management Institute (IWMI) Thomson T (2008) More water management innovations in the Angas Bremer district of South Australia. In: Lambert M, et al. (eds) Proceeding of water down under. Causal Productions Water Act (2007) Commonwealth of Australia

Chapter 4

Climate Change Effects and Non-legally Binding Groundwater Plans to Improve the Governance of Hidden Waters

The deeper the waters are, the more still they run Korean Proverb

4.1 Introduction The previous chaper introduced some of the core features of groundwater law and governance in Australia with a particular focus on South Australia. This chapter examines groundwater law in Western Australia, a state that has been slow at crafting and implementing nationally agreed policies such as the National Water Initiative (NWI). This chapter also engages with the case study of South West. This case study provides a contrasting situation with Angas Bremer. In doing so it discusses how groundwater law have shaped (and continue to do so) the governance of the water underneath the surface, while putting attention to sustainability and equity concerns. In Western Australia there are no apparent crises of groundwater scarcity, or salinity. The government entities attempt to follow the end-goals of equity and sustainability but not with great zeal. This chapter addresses in particular the following questions: Do people get involved in groundwater governance when there are no evident problems? What are common groundwater practices when there is no apparent crisis? Do community leaders still arise without crises? Do governments do enough to ensure equity when not forced by people and communities? Do communities’ self-police on voluntary measures to attain sustainable water use? What has been the role of law in groundwater governance? In the other case studies several elements are recurring, but do they arise only during pressing problems and crises that plagues the community, or not. Even though a case study without obvious problems might seem only mildly interesting, it increases our understanding of which elements and responses in groundwater law and governance are pushed by crises and which are in the communities and government institutions even in calm times. This chapter also

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_4

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seeks to compare and contrast the South Australia approach to groundwater law and governance with Western Australia as well as the practices found in the case studies.

4.2 Groundwater Law and Governance in Western Australia Similarly, to South Australia, Western Australia is undertaking (ground)water policy and legislation reforms, albeit at a slower rate. As part of the reform agenda, in 2017, it established the Department of Water and Environmental Regulation, which is an amalgamation of the Department of Water, the Department of Environment Regulation, and the Office of the Environmental Protection Authority (CuadradoQuesada 2018). This department developed a policy to provide overarching guidance on compliance and enforcement functions.1 Currently Western Australia is taking steps towards drafting and implementing new water policy and legislation.2 These reforms will include a blend of the main Acts currently regulating water issues in the state and it is expected to provide tools to manage high use water resources that are being impacted by climate change, such as Perth’s main Gnangara groundwater system and Western Australia’s south-west. It is also expected that it provides new and innovative ways of using water, such as managed aquifer recharge and geothermal technology. A key feature of the reforms is the recognition of Aboriginal people’s spiritual, social customary, and economic use of water. However, despite these efforts, such an act is still waiting for approval. Currently, in Western Australia, the 1914 Rights in Water and Irrigation Act (RWIA) (as amended) is the primary legislation dealing with the regulation, management, use, and protection of surface and groundwater resources. This act has as key objective to foster participation, inclusiveness, and equity, to include the most vulnerable groups, to enable them to participate, and become active part of water resources planning (RWIA 1914, pt III, div 1(4)1 c). To develop the water planning process— which Western Australia started in 2006 (following the National Water Initiative 2004)—the state government received important funding from the Australian Government’s Water for the Future initiative. Among the aims of this fund was to assist the process of developing new water regulation in Western Australia and to provide participation mechanisms to the communities in order to improve groundwater governance. Moreover, the benefit of consultation was included in the Water Allocation Planning in Western Australia: A Guide to Our Process, 2011, which indicates that the government will work closely with water resource management committees, advisory groups or other formal groups in the development of water and 1

For more information see Department of Water and Environmental Regulation (WA), Interim Compliance and Enforcement Policy (2018) Government of Western Australia . 2 For more information see Department of Water and Environmental Regulation (WA), Water Reform: https://www.water.wa.gov.au/legislation/water.

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groundwater allocation plans. However, this Act does not explicitly engage with the principle of equity. In the RWIA, it has also been recognised the importance of sustainability of water resources. The RWIA establishes: • provide for the management of water resources (including groundwater), and in particular for their sustainable use and development to meet the needs of current and future users • the protection of their ecosystems and the environment in which water resources (including groundwater) are situated, including by the regulation of activities detrimental to them (RWIA 1914, s 4(1)). Similarly, to South Australia, Western Australia’s RWIA highlights the importance of the concept of sustainability, in order to achieve sustainable use in the management of water resources and in the protection of the ecosystems in which they are found. This includes regulation of activities that can harm surface and groundwater resources. However, surface and groundwater governance in Western Australia is done through non-statutory allocation plans, without legally binding obligations. In other words, overall sustainability and equity targets are not binding as in South Australia. This is a key difference among both states.

4.3 A Top-Down Approach to Groundwater Governance The South West area of Western Australia is located about 200 km south of Perth, the capital city of Western Australia. It covers an area of 23,970 km2 (Fig. 4.1) and was inhabited by approximately 170,000 people in 2013, and it is predicted to rise to 217,000 by 2023. In the past 20 years, the population has significantly increased, as well as the commerce, tourism, and the industries (Government of Western Australia 2011). Moreover, this area has experienced noteworthy climate change effects since 1975 resulting in less rainfall recharge reaching the groundwater system every year; the situation is expected to worsen (CSIRO 2009). The government of Western Australia has developed important strategies such as improved water planning for the area through surface and groundwater allocation plans; however, these plans are non-statutory (do not create legal responsibilities). Groundwater is the most important water source in South West. It is mainly used for drinking, for public and private lawns and gardens irrigation, for horticulture, industry, tourism, and commerce. Groundwater is also critical for the survival and conservation of species and ecological communities dependent on groundwater flows (Bennett and Gardner 2015).

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Fig. 4.1 Map illustrating the South West case study and showing main groundwater resources. Source Author

4.3.1 Background and Context The South West of Western Australia is one of the fastest growing areas in the state in terms of population and groundwater demand, which is considerably high and increasing (Cuadrado-Quesada 2018). Water levels in the main aquifers—like the Yarragadee and the Leederville—are decreasing due to reduced rainfall and higher extraction. In some of the northern aquifers, the recycling of salt through irrigation is impacting on groundwater quality (CSIRO 2014). As discussed before, the 1914 RWIA is the main regulatory framework for surface and groundwater resources. It provides for the licensing system for surface and groundwater access and allocations under sections 5C and 26D (Rights in Water and Irrigation Act (RWIA) 1914). Water allocation planning guides the licensing decisions in Western Australia. As part of the water planning process, Western Australia has developed and implemented several surface and groundwater allocation plans. Despite this fact and being water licensing statutory and regulated in the RWIA, the surface and groundwater allocation plans in Western Australia are non-statutory.

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Apparently, there are several explanations for non-statutory WAPs. Firstly, they are not strictly made in accordance with the provisions stipulated in the RWIA or any other Act. Secondly, according to some legal scholars, WAPs are partially non-statutory because of a failure to create the body required to complete the statutory plan-making process: the Water Resources Council (Hartley 2014; Bennett and Gardner 2015). The creation of this council was envisaged under RWIA, although it has not yet been created. Legally, this council must approve all plans created under the RWIA provisions in order to make them statutory; it means that, while this council does not exist, Western Australia will not have statutory groundwater allocations plans. Even though the WAPs in Western Australia are non-statutory, they seek to promote participation and inclusion through consultation. Likewise, the groundwater allocation plans clearly mention the goal of long-term sustainability and include mechanisms such as sustainable diversion limits and monitoring. This case study is different from Angas Bremer in several ways. These include: • the challenges involved in achieving participation, inclusion, and equity in governing groundwater resources; • the fact that groundwater allocation plans are non-statutory; • limited impact of the groundwater crisis; • being a large-scale community with many diverse actors, practices, needs, and interests. However, like South Australia, Western Australia’s approach to inclusiveness, participation, and ultimately equity is based on participatory processes. Also, like South Australia, Western Australia pursues to promote groundwater sustainability. Following this background and context are two stories. The first one is about participation, inclusion and overall equity. The second one is about sustainability of groundwater resources. Both of them include a discussion of the National Water Initiative (NWI), the RWIA, the local legal planning tool of the 2009 South West Groundwater Areas Allocation Plan, the 2009 Statement of Response, the South West Groundwater Areas Allocation Plan: Evaluation Statement 2009–2012 and the 2011 Water Allocation Planning in Western Australia: A Guide to Our Process. In order to promote participation, inclusion and overall equity in groundwater law the Department of Water developed participatory processes through public meetings where interested stakeholders in the area were invited. Notably, this case study highlights some of the limitations of the participatory processes around the design of legal instruments. Moreover, it includes the challenges of addressing human consumption patterns and the limitations inherent in reliance on non-statutory water planning instruments.

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4.3.2 Limitations in Governing Through a Top-Down Approach As shown by the interviews conducted during this case study, the 2009 Groundwater Areas Allocation Plan was developed through a limited participatory process. Interested people from Western Australia were able to access information but not to influence decision-making of their local (ground)water law. In that sense, in Western Australia most people did not have the opportunity to address their concerns about getting a fair share of groundwater. Many also believed that they could not include their concerns regarding sustainability of groundwater resources. Some other argued that the groundwater plan included—at least—an adequate provision of information about groundwater resources and the need for the groundwater plan. (Interviews Australia No. 22 Government agency, 7 April 2014; No. 23 Government agency, 7 April 2014; No. 25 Farmer, 8 April 2014, No. 26 Non-Government organisation, 8 April 2014; No. 27 Government agency, 8 April 2014; No. 28 Non-Government organisation, 8 April 2014, No. 29 Scientist, 9 April 2014; No. 211 Scientists, 9 April 2014). Equity in the South West case study is more problematic than in Angas Bremer. In this case study it was evident the lack of recognition e.g., social difference and legitimacy of rights claim. Also, participation (procedural justice) was clearly missing. In multiple interviews, the limited recognition of certain actors e.g., small farmers and the limited participation of a variety of groundwater users in the development of the groundwater allocation plan in the South West of Western Australia was mentioned (Interviews Australia No. 22 Government agency, 7 April 2014; No. 25 Farmer, 8 April 2014, No. 26 Non-Government organisation, 8 April 2014; No. 27 Government agency, 8 April 2014; No. 28 Non-Government organisation, 8 April 2014). Despite this, reported accomplishments include—besides the information provided to some interested people (albeit limited)—the creation of an advisory group. As highlighted by an interviewee: ‘They have got all the science and whatever…but what the Department of Water hasn’t got and never will have is local knowledge and local history; that is something they haven’t got and that’s where the advisory group…play a role…the advisory group represents many of the needs…’ (Interview Australia No. 25, Farmer, 7 April 2014). This quote illustrates the complexity and diversity of elements that need to be included in groundwater law. Science, local knowledge, practices and local history need to be acknowledged and included in allocations/shares definitions in the various systems of groundwater control, which in this particular case is the groundwater plan. As mentioned by the interviewees, the information provided included the requirements for the groundwater allocations, an outline of the main problems in the area, and how the plan would help them share groundwater resources and face the main problems such as overallocation and overexploitation. It seems that the Department of Water provided pertinent information about groundwater in the area and the importance of elaborating the groundwater plan, as a ‘system’ of groundwater control. As discussed by one participant, ‘We do a lot of planning work, and consultation,

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to provide a plan. Then, during the life of that plan, we revisit how that plan is tracking or elements of the work… So, through that process, we look at what has been going on…some general high-level feedback on the licensing process…’ (Interview Australia No. 29, Government Agency, 9 April 2014). Even though a prominent factor found in this case study—similar to the Angas Bremer case study—was the government’s involvement and funding, the problem regarding inequity in access, allocation and distribution of groundwater resources was not tackled. The government of Western Australia asserted that they have invested considerable funds to facilitate participation/consultation mechanisms in the development of the groundwater plan. As expressed by a participant: ‘We have had important funding from the Commonwealth Government to develop this planning process (e.g., organise meeting, create an advisory group) and others in Western Australia with a participatory approach…we would like to have represented as many different stakeholders and interests as possible in the plan’ (Interview Australia No. 30, Government Agency, 9 April 2014). However, and despite the funding and the meetings and the existence of an advisory group, many respondents affirmed that: ‘the were no discussion regarding reallocation and redistribution of groundwater’ (Interviews Australia No. 25 Farmer, 8 April 2014, No. 26 Non-Government organisation, 8 April 2014; No. 28 Non-Government organisation, 8 April 2014). Moreover, several people argued that important concerns raised by them were not included at all in the groundwater plan. As mentioned by an interviewee, ‘We have submitted several comments saying that a main concern about the plan is that improvements are required to maintain and improve the level of baseline knowledge… but that was not included… as well as concerns about overallocations’ (Interview Australia No. 31, Community-based organisation, 10 April 2014).This shows how in this case study besides equity concerns not being included, there were also concerns regarding sustainability such as overallocation and overexploitation, which were also not addressed in the groundwater allocation plan. Apart from these shortcomings regarding equity and sustainability, it seems that this case study was also facing challenges regarding groundwater law and governance due to two main factors: (i) the limited impact of groundwater crisis, which seemed to have not only prevented the government to be more proactive with the development of groundwater law but also did not motivate people to get involved in groundwater issues as opposed to what happened in Angas Bremer; and (ii): the large size of the area, which made it harder for the government to carry out a participatory process and for interested people to organise and demand that their needs, practices, interests, and concerns were included as also opposed to what happened in Angas Bremer. The limited impact of groundwater crisis: Western Australia has not had water scarcity problems, like massive droughts that the East of the country—including South Australia—has had. However, and even though in this case study most people have not been directly affected by water unavailability, Western Australia is being seriously affected by climate change. Scientists demonstrated that winter rainfall has decreased considerably over decades, and this reduction is projected to continue with

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less recharge to aquifers and lower and less frequent stream flows (Silberstein et al. 2012). It is interesting to point out that, in 2002, when the Water Corporation—the government institution responsible for water supply in Western Australia—looked at a project consisting on taking 45 billion litres of water from the South West, Yarragadee to Perth (capital and biggest city in Western Australia), everyone became very vocal and public demonstrations against the proposal were carried out. The state government decided not to take water from the Yarragadee, and instead to build another desalination plant in Perth to provide water. As expressed by an interviewee, ‘…not taking the water from the Yarragadee and building another desalination plant… was one of the few times when the state government made a decision based upon people’s views…’(Interview Australia No. 33, Government Agency, 11 April 2014). This seems to indicate that, if people know there is an eminent threat that could put water availability at risk, they are more likely to confront the authorities and be proactive in groundwater governance issues. The large size of the area: This includes different voices, authorities and interests of many different groups and peoples. In particular, it is difficult to ensure sufficient recognition and representation of different needs, practices, and interests of organised groups and even more of individuals. As one government respondent explained: ‘[s]o when we were doing the consultation for the Groundwater Areas Allocation Plan…because the area is so broad and there are many stakeholders groups…we have another water allocation plan going on, to me, that one was much easier. I know exactly who to talk to, what industries, what natural resources management groups. But this one’s been more difficult…’(Interview Australia No. 34, Government Agency, 11 April 2014). In South West, although there was access to information and different participatory processes—e.g., several meeting in different communities, and the creation of an advisory group—the actual involvement and recognition of different groundwater users and their participation in the outcome of the groundwater plan was very limited. This evidences the complexities of creating participatory and inclusive processes in groundwater law and governance. Providing community involvement becomes a herculean task when communities are notably diverse, are spread, and do not share practices, principles, and interests. Indeed, although the Department of Water provided spaces for consultation by organised public meetings in many communities and requested feedback through their website, it appears that the process was considerably limited by insufficient community recognition and representation—able to ‘have a say’ in the groundwater plan—which ended in the absence of many community needs, practices, interests, and concerns in the groundwater plan. Moreover, even though the Department of Water tried to improve groundwater law and governance, it was evident the limits in attaining such endeavour.

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To summarise, the story of groundwater law and governance of invisible waters in South West, Western Australia appears to have several problems when it comes to equity, including a limited level of participation, recognition, and inclusiveness. It is difficult to assess to what extent problems regarding access, distribution, and overall equity exist in this area, considering that many people were not even in contact during the process of drafting the 2009 Groundwater Areas Allocation Plan. When conducting the interviews, many suggested that even though there were meetings and information provided by the government, a large number of people living in the area were not aware of it (Interview Australia No. 34, Community-based organisation, 13 April 2014; Interview No. 37, Community-based organisation, 14 April 2014). Despite the several limitations, this case study discloses that the government provided an effort to build a consultation process. All the respondents agreed that the government organised several meetings in different locations when drafting the groundwater plan and also affirmed that those meeting where attended by some organised groups, who provided input. The government also suggested that they invested important funding—coming from the Commonwealth Government—in organising the meetings, creating the website to receive feedback, and other related activities. However, as explained, these features were limited; for example, input of different stakeholders in the plan’s decisionmaking process was not properly incorporated in the output of the plan. This case study illustrates a very different approach—from Angas Bremer—to practices of drafting groundwater legal frameworks. It lacks of a bottom-up led process, as in Angas Bremer. This seems to have happened mainly due to two factors: the large size of the area and diverse population, and the fact that people were not suffering direct problems with water availability or water quality. The aforementioned discussion suggests that in order to improve equity concerns such as representational justice (e.g., equal opportunity of participation) the size of the area matters.

4.3.3 Pushing for Sustainable Levels of Groundwater Use The second story of this case study is about pushing for sustainability. It focusses on what have been the key sustainability concerns in this region, and what measures have been taken in order to promote overall sustainability of groundwater resources. This story goes back to the 1970’s, when the area started experiencing significant climate change challenges in surface and groundwater resources due to a decrease in the rainfall (CSIRO 2009, 2014). The scientific evidence collected in past years suggests that a drier climate is linked to human-induced climate change, and that further drying is likely to happen as greenhouse gas concentrations in the atmosphere increase (Wenju and Cowan 2006). This is provoking serious risks for surface and groundwater resources governance. However, as mentioned before, people have not suffered these changes yet.

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The story of sustainability of groundwater resources in the South West of Western Australia is indeed interesting because, according to many national and international climate change experts, the region has experienced great impacts on divertible water—including groundwater—resources (Silberstein et al. 2012). The South West of Western Australia is heavily reliant on groundwater, due to limited availability of surface water. Annual groundwater use in South West is estimated to be about 850 GL, which is about 74% of all water used (CSIRO 2014). The state-wide average rainfall for 2014 was 406 mm, 19% below the historical average (Silberstein et al. 2012). Scientific reports have shown that climatic changes have increased pressure on groundwater resources, both directly—through reduced recharge of aquifers— and indirectly—through increased extraction as a substitute for surface water. The area has experienced significant reduction in rainfall together with other climatic changes, such as rainfall intensity and rising average temperatures (CSIRO 2014). Additionally, it is expected that by 2030 the region will be drier and hotter than in the last 33 years (Silberstein et al. 2012). It is predicted that surface water yields will be on average 24% lower than current yields, and groundwater yields may decrease between 2 and 7% (CSIRO and Bureau of Meteorology 2014). Accordingly, it seems that the area is experiencing significant challenges, mainly driven by human patterns including overexploitation of groundwater resources. As pointed out by an interviewee ‘What’s caught everyone by surprise, two things I guess: one is the drying climate…it’s just been unprecedented what’s happened here and has happened more quickly than anywhere else in the world…we’ve had people coming from the US and the UK to see what’s actually happening here, because it is so unprecedented; but the other thing is that obviously there’s huge growth in demand’ (Interview Australia No. 22, Government agency, 7 April 2014). Unfortunately, unprecedented situations like the experienced in South West are becoming more and more common every year (Cuadrado-Quesada 2018; Villholth et al. 2018). This just provides another evidence of the multiple impact of human patterns of consumption in the overall hydrological cycle. In order to find promising ways to address these pressing problems, the government has increasingly designed and implemented surface and groundwater allocation plans in the South West of Western Australia, one of them being the 2009 South West Groundwater Areas Allocation Plan. This is the plan that was in forced when field research was conducted. It stipulates allocation limits, which were defined based on a sustainable diversion limit, and they represent the volume of water that can be taken from a water resource after deciding how much water must be left in the system to support ecological, social, and cultural values, maintain the seawater interface and account for the likely effects of climate change (Department of Water 2009). Moreover, it includes programs to monitor surface and groundwater resources, analyse surface and groundwater trends as well as ecological triggers. One of the most positive aspects of this plan—in relation to sustainability—has been the establishment of a monitoring program; the objective is to ensure that the Department of Water manages surface and groundwater resources for consumptive use while—at the same time—

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protects the dependent social, cultural, and ecological values. The plan includes, as a supporting document, the South West Groundwater Areas Monitoring Program, which has subprograms that address the four most important aspects of surface and groundwater governance: groundwater levels, groundwater quality, connected surface water and groundwater systems, and environmental provisions (Department of Water 2009). This has led to a better understanding of surface and groundwater resources and provided the Department of Water with scientific knowledge to assist in optimal management of the resource. As expressed by a participant, ‘Oh yeah, obviously it’s not just the science, it’s the monitoring…So because groundwater has a long memory, and you need to look at what’s happening over a long period of wet and dry years and those sorts of things…The researchers need that long-term monitoring record to actually analyse it’ (Interview Australia No. 212, Non-government organisation, 9 April 2014). The above mentioned illustrates the importance of the involvement of state government agencies in promoting sustainable use of water resources. This case study evidences that groundwater law and governance need government agencies input—mainly for research and monitoring—which are expensive. Such institutions provided expertise, which is needed to have data, but also to monitor and understand the behaviour of groundwater over time. Such understanding is required in order to make decisions based on scientific facts, which undoubtedly will ease to move towards more sustainable use of groundwater. Even though the South West region is already experiencing severe impacts due to climate change, people have not fully felt the direct impact of water shortage yet. This was expressed by all of the interviewees. Interestingly, a participant highlighted that, ‘In fact, a lot of people don’t perceive that we’ve got any water problems because they haven’t had the sort of water shortages that you’ve had over east [east of Australia]. That’s partly because we’ve got a huge amount of storage in those groundwater systems [emphasis added]’ (Interview Australia No. 22, Government agency, 7 April 2014). The natural storage of groundwater in this area has helped prevent crisis such as water shortage. However, the challenges are many, and it is important to design and implement initiatives to protect and use this vital resource in a sustainable manner. One interviewee commented that: ‘This region is being seriously affected by a drying climate…but the community has not suffered serious consequences yet…the only restriction that we have here is that people are only allowed to use their sprinklers two days a week, before 8 a.m. and after 6 p.m., and not at all during winter’ (Interview Australia No. 23, Government agency, 7 April 2014). This shows how in the South West the situation of groundwater availability has not been as desperate as in other places in Australia (Curtis and Lockwood 2000; Holley and Sinclair 2013; Curtis et al. 2014) like in Angas Bremer, back in the 1980’s. Comparable to Angas Bremer, government funding was another prominent factor of this case. The government of Western Australia invested considerable funds in order to understand groundwater behaviour and deal with the consequences of climate change. As discussed by many scholars, the government support for communities to better understand groundwater behaviour is critical (Balland and Platteau 1996;

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Loaiciga and Leipnik 2001; Baldwin et al. 2012). In order to achieve that, the government in Western Australia provided a considerable number of scientific studies, carried out by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and the Bureau of Meteorology (BoM). As expressed by a participant: ‘In 2001, the Labour Premier formed what they called a Premier’s water foundation and put USD $2 million into it, so there was a round of funding. CSIRO, at that stage, got about two-thirds of that, because there weren’t that many people doing water research over here, so they were set up ideally. About three years later, they gave another USD $2 million…’ (Interview Australia No. 22, Government agency, 7 April 2014). However, it was revealed from the interviews that in Western Australia there is a limited use of available scientific studies when it comes to groundwater practices by farmers, industries, and households and also in the designing of policies, laws, and the groundwater allocation plans. A few stakeholders were concerned that the 2009 South West Groundwater Areas Allocation Plan was not underpinned by all the available scientific data. As one participant commented: ‘The Department of Water’s evaluation statement, that was very silent on the CSIRO study; so in terms of governance or policy, there was nothing that came out from the Department of Water on the CSIRO study…we might have one set of views based upon the CSIRO study and yet we have different documents that our government puts out…’ (Interview Australia No. 27, Government agency, 8 April 2014). The discussion about sustainability in this case study presents four main differences from the one of Angas Bremer. First, there are no groundwater practices in place to reduce groundwater use by any groundwater users including farmers, industries and households. Second, no legal dispositions have come from the 2009 South West Groundwater Areas Allocation Plan to create protection areas in order to help conserve groundwater resources, because they regulate land use activities that could contaminate or otherwise threaten aquifer water quality (Mackenzie et al. 2008). This is a governance tool that proved to contribute positively to the overall sustainability in Angas Bremer—and which came up from the irrigators’ practices. Third, the monitoring program was—to some extent—limited; it did not contain enough information on groundwater overuse nor facilitated learning and awareness for groundwater users—as in Angas Bremer. Fourth, there is an ongoing discussion in the South West, and across Western Australia, about whether they should have statutory (ground)water allocation plans—with legally binding obligations—or not. Of course, there are multiple views around this topic. Some argue that having statutory WAPs provides an important basis to consolidate their enforcement; however, others claim that it is better to continue with a more flexible approach. Even though the four aforementioned distinctions are important, the last one deserves extra attention as it has been the focus of legal scholars discussing sustainable use of groundwater in Australia. Some legal scholars claim that because groundwater plans in Western Australia are non-statutory, they do not require specific regulations to be followed. They argue, for example, that there are no requirements for non-statutory plans to stipulate a sustainable yield or that the final allocation limit be consistent with the sustainable yield (Bennett and Gardner 2015). However, some scientists such as hydrologists,

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have defended not having statutory plans, arguing that: ‘Because the plans are all non-statutory, they’re very flexible…you can update a plan whenever you like…but if they’re statutory, then they become much less flexible and then they become very cautious as to what they’ve put in those plans, because if you have to go back through parliament to get them amended, then you can become incredibly conservative about how much water you’re going to allocate’ (Interview Australia No. 211, Scientist, 9 April 2014). It must be highlighted that statutory plans can also be flexible and adaptive; some even have a timeframe to review them. Moreover, other legal scholars have demonstrated that negative incentives (e.g., sanctions such as loosing water allocations) can discourage non-sustainable uses of groundwater (Ross and MartinezSantos 2010). As long as these plans remain non-statutory, this incentive will not exist. The findings of this case study revealed that, even though most people are indeed compliant—using only the water that they are allowed to, there is some noncompliance. As pointed out by a participant, ‘We don’t see a lot of non-compliance in the South West…there’s certainly a few players who play the game, but not very many’ (Interview Australia No. 23, Government agency, 7 April 2014). Even though there is a defined sustainable yield and groundwater monitoring is done, it has been recognised that there is an overallocation in the South West Groundwater Areas Allocation Plan (Bennett and Gardner 2015). In addition, it is becoming ever more difficult to accurately assess overuse, because there are not enough metres to cover the area to enable an assessment of it (Bennett and Gardner 2015). In the South West case study, despite the practice of monitoring, it is not possible to conclude that there is a sustainable use of groundwater. As discussed, in this case study there is an evident practice of overallocation and a lack of information about overuse, hence this monitoring does not allow for an accurate assessment of the overall use of the region’s groundwater. To summarise, the story of sustainability in the South West case study demonstrated the importance of government involvement, science—knowledge about how groundwater resources behave, and funding to promote sustainable use of groundwater resources, i.e., through monitoring.

4.4 Conclusion This chapter continued with the discussion of groundwater governance and law in Australia while putting attention to legal instruments and practices in Western Australia, which is a state that has been slow at developing and implementing nationally agreed policies such as the NWI. Moreover, it introduced the second case study of the book that of South West. This case study disclosed a limited success in promoting practices related to participation, inclusiveness, equity, and sustainability.

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The case study illustrated challenges in achieving equity concerns due to two main factors: the limited impact of groundwater crisis/problems—which has prevented most people to ‘fight’ for having a seat at the table—and the large size of the area and the multiplicity of actors, which makes more difficult to recognise everyone’s needs, practices, interests, and concerns. Moreover, there is an evident problem to formally regulate sustainable use of groundwater resources (Hamstead et al. 2008). This is to say that, overallocation problems still persist in the area. Unfortunately, there is a lack of detailed information about overexploitation. In particular, accurate assessments of overuse are difficult to make, due to an insufficiency of metres covering the area. It is therefore also impossible to assess the extent of non-compliance of groundwater law (Bennett and Gardner 2015). Nevertheless, anecdotal evidence provided by interviewees suggests that at least some degree of non-compliance exists. Given the existing research demonstrating the limitations of these non-statutory planning mechanisms, it is interesting to ask whether groundwater law in Western Australia should be reformed. As in Angas Bremer, significant government funding has been targeted to better understand how groundwater systems work and to conduct participatory processes. However, unlike the Angas Bremer experience, government agencies did not manage to involve all relevant organised groups and individuals, and did not managed to include all existing science and practices in groundwater law. Of course the size of the area in which a (ground)water allocation plan is being developed also matters, turning the South West into a more challenging case study. Moreover, government agencies have not succeeded at implementing statutory planning yet, which has happened in most of the country. Apparently, in this case study, the lack of perception of a groundwater crisis/problems have contributed to the passiveness of government agencies as well as civil society. Finally, it is important to reflect on existing empirical research showing that negative incentives—e.g., enforcement or the threat of enforcement—through statutory regulation such as groundwater allocation plans, can discourage people from using groundwater unsustainably and inequitably (McKay 2011; Bennett and Gardner 2015). The table below summarises the South West Case Study (Table 4.1).

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Table 4.1 Summary/South West, Western Australia, Australia Summary/South West, Western Australia, Australia Location: The South West area of Western Australia, about 200 kms south of Perth, the capital city of Western Australia

Contextual Factors: • Australia is one of the driest countries in the world • In the 1980s the Commonwealth of Australia gradually got involved in the development of Australian water policy. There is Commonwealth leadership in water policy in recent years and the states are responsible for water policy and law. Western Australia illustrates an example of a slow implementation of water policy and law reforms • The country has a world leading water quantity and quality management framework, which provides a national system implemented through state and territory governments • The innovative and robust developments of water legislation had contributed to position Australia as a world leader in surface and groundwater reforms, however this has changed in recent years • Surface and groundwater governance in Western Australia is done through non-statutory allocation plans, without legally binding obligations • Climate change effects in South West has caused less rainfall recharge reaching the groundwater system every year; the situation is expected to worsen • The South West of Western Australia is one of the fastest growing areas in the state in terms of population and groundwater demand. Water levels in the main aquifers are decreasing due to reduced rainfall and higher extraction • The groundwater allocation plans in the area expressly pursue equity and sustainability concerns

Situation: • Western Australia is seriously affected by climate change. However, it has not had water scarcity problems • In the 1970’s, the area started experiencing significant climate change challenges in surface and groundwater resources due to a decrease in rainfall • Drier climate is linked to human-induced climate change, and more drying is likely to happen. This is provoking serious risks for surface and groundwater resources governance • The South West of Western Australia is heavily reliant on groundwater, due to limited availability of surface water. Climate change has increased pressure on groundwater resources. However, people have not suffered these changes yet (continued)

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Table 4.1 (continued) Summary/South West, Western Australia, Australia Results: • The government of Western Australia invested considerable funds to facilitate participation mechanisms and wide information in the development of groundwater allocation plans. However, there was not enough participation and several people argued that important concerns were not included • The challenges to achieve equity concerns are due to: the limited impact of groundwater crisis and the large size of the area • Even though there is a monitoring program, it is limited, it did not contain enough information on groundwater overuse, nor facilitated learning and awareness. As a result, it does not allow to conclude if sustainable use of groundwater has been achieved • Overallocation problems still persist in the area and there is a lack of detailed information about overexploitation • It is difficult to assess the extent of non-compliance of the non-statutory groundwater allocation plans and, therefore, to understand why are they still being used Source Author

Legal and Policy Frameworks 1914 Rights in Water and Irrigation Act, Government of Western Australia. 2004 Intergovernmental Agreement on the National Water Initiative (NWI), Commonwealth of Australia.

Interviews Conducted Australia, Western Australia Interview No. 22 Government agency, 7 April 2014. Interview No. 23 Government agency, 7 April 2014. Interview No. 25 Large-scale Farmer, 8 April 2014. Interview No. 26 Non-Government organisation 8 April 2014. Interview No. 27 Government agency, 8 April 2014. Interview No. 28 Non-Government organisation, 8 April 2014. Interview No. 29 Scientist, 9 April 2014. Interview No. 30 Scientist, 9 April 2014.

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References Baldwin C, Tan P, White I, Hoverman S, Burry K (2012) How scientific knowledge informs community understanding of groundwater. J Hydrol 474:74–83 Balland J, Platteau J (1996) Halting and degradation of natural resources: is there a role for rural communities. Clarendon Press, Oxford Bennett M, Gardner A (2015) Regulating groundwater in a drying climate, lessons from south west Australia. J Energy Nat Resour Law 33(4):293–319 Commonwealth Scientific and Industry Research Organisation (CSIRO) (2009) Water yields and demands in South-West Western Australia: a report to the Australian government from the CSIRO South-West Western Australia sustainable yields project. Report 3. Commonwealth Scientific and Industry Research Organisation (CSIRO) and Bureau of Meteorology (2014) State of the climate. Australian Government Cuadrado-Quesada G (2018) Challenges and opportunities at implementing groundwater governance in Australia: case studies from South Australia and Western Australia. Environ Policy Law J 35:588–605 Curtis A, Lockwood M (2000) Landcare and catchment management in Australia: lessons for state sponsored community participation. Soc Nat Resour 13:61–73 Curtis A, Ross H, Marshall G, Baldwin J, Cavage J, Freeman A, Carr A, Syme G (2014) The great experiment with devolved NRM governance: lessons from community engagement in Australia and New Zealand since the 1980s. Australasian J Environ Manage 21(2):175–199 Department of Water, Government of Western Australia (2009) South west groundwater areas allocation plan, statement of response. Department of Water 2009–2012 Department of Water, Government of Western Australia (2009) Water allocation planning in Western Australia: a guide to our process. Department of Water 2009–2012 Government of Western Australia, Department of Water (2011) Water allocation planning in Western Australia, a guide to our progress (Government of Western Australia, 2011) Hamstead M, Baldwin C, O’Keefe V (2008) Water allocation planning in Australia, current practices and lessons learned, waterlines occasional Paper No 6. National Water Commission, Australian Government Hartley M (2014) East meets west: the relevance of eastern water law reforms for the west— an experimentation of arguments against the implementation of eastern states water reforms measures in Western Australia [June] Water 4 Holley C, Sinclair D (2013) Deliberative participation, environmental law and collaborative governance: insights from surface and groundwater studies. Environ Plann Law J 30(1):32–55 Intergovernmental Agreement on the National Water Initiative (2004) Commonwealth of Australia Loaiciga H, Leipnik R (2001) Theory of sustainable groundwater management, an urban case study. Urban Water 3(3):217–228 Mackenzie J et al. (2008) Collaborative water planning, context and practice literature review (Land and Water Australia 2008) McKay J (2011) Evidentiary issues with the implementations of the sustainability duty of care in the basin plan. In: Connell D, Quentin G (eds) Basin futures, water reform in the Murray-Darling Basin. ANU Press Rights in Water and Irrigation Act (1914) Western Australia Ross A, Martinez-Santos P (2010) The challenge of groundwater governance, case studies from Spain and Australia. Reg Environ Change 10(4):299–310 Silberstein R, Aryal SK, Durrant J, Pearcey M, Braccia M, Charles SP, Bonieck L, Hodgson LA, Bari MA, Viney NR, McFarlane DJ (2012) Climate change and runoff in South West Australia, 475, J Hydrol 441 Villholth KG, Lopez-Gunn E, Conti K, Garrido A, van der Gun J (2018) Advances in groundwater governance. CRC Press Wenju C, Cowan T (2006) SAM and regional rainfall in IPCC AR4 models, can anthropogenic forcing account for Southwest Western Australian winter rainfall reduction? Geophys Res Lett 33:1–5

Chapter 5

A Cutting-Edge Water Law, Strong Water Institutions and the Problem of Groundwater Excess

The difficulty lies, not in the new ideas, but in escaping from the old ones John Maynard Keynes

5.1 Introduction The previous two chapters discussed groundwater law and governance in Australia. This chapter analyses The Netherlands, which is another relevant country to study groundwater related concerns due to its tradition of good governance of water resources, building dykes, dams, and water protection. The Netherlands also has a long-standing tradition of groundwater specific governance due to the development since 1981 of a Groundwater Act, which regulated all extraction and related activities to groundwater infiltration and recharge. This chapter also discusses the case study of Delft. Delft is a city located in the West of The Netherlands, which offers a different approach to the rest of the case studies of this book, because it faces the particular challenge of groundwater excess (Wong et al. 2007). This chapter addresses the following key questions: What motivates people to get involved in groundwater governance? What are core groundwater practices? How does law have been used to address groundwater troubles? What have been the responses of government agencies to address the problem of excess of groundwater? What have been the main demand of the community towards the government?

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_5

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5.2 The Netherlands: Setting the Scene for Groundwater Law and Governance The Netherlands, which is officially part of the Kingdom of The Netherlands, is located in North-Western Europe. Its total population is about 17.5 million people. The Kingdom of The Netherlands is formed by countries which include The Netherlands, Aruba, Curaçao, and Saint Maarten (these last three are islands located in the Caribbean). It has twelve provinces: North Holland, South Holland, Groningen, Friesland, Flevoland, Overijssel, Utrecht, Drenthe, Gelderland, Zeeland, Limburg, and Noord-Brabant. The Netherlands means the low lands, referring to its low elevation and flat topography, with only approximately 50% of its land exceeding 1 m above sea level and about 25% falling below sea level (Meijer 1997). The country is located between the North Sea and major rivers flowing into it from other European countries. The Scheldt and the Meuse rivers enter The Netherlands from the south. The Rhine River enters the country coming from the East and flows to the North Sea, Ijsselmeer and Wadden Sea. Thus, large amounts of European water move through The Netherlands to the sea. The waters are tapped off for drinking water and irrigation purposes. These waters are supplemented with domestically produced rainwater and—treated wastewater. The areas below sea level are known as polders, which are the result of land reclamation that started in the 16th Century. They are mainly lakes and swamps being drained or shallow lands being diked (Van Steen and Pellenbarg 2004) to control the groundwater levels, usually with pumping stations. This technology has evolved considerably during the past centuries. Currently electric pumping stations allows to control groundwater in the polders at levels that enable growing crops (Kranenburg 2001; Van Steen and Pellenbarg 2004).

5.3 Development of Water Infrastructure in The Netherlands There is a proverb in The Netherlands that says ‘God created the Earth and the Dutch created The Netherlands’. Due to the low elevation and flat topography, The Netherlands historically have had to develop important water infrastructure projects to keep the country safe. According to some Dutch engineers, the major projects developed in the last century, that have significantly shaped water management, governance and protection are: 1.

The Zuiderzee project. It consisted in the construction of a 30-km dam between North Holland and Friesland that transformed the inland sea of the Zuiderzee into the lake Ijsselmeer. Along with the transformation of the lake several polders were built. Its main goals were to protect the region from flooding near the North Sea, increase the country’s food production using the newly created polders that could be converted into farmland, and use the new lake to improve water

5.3 Development of Water Infrastructure in The Netherlands

2.

3.

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governance (Kranenburg 2001; Van Steen and Pellenbarg 2004). This project was an answer to a severe flood that occurred in 1916. The Delta project. It was meant to protect the Southwestern part of The Netherlands, from flooding as well as from the negative impacts of salt water. Even though there was considerable research showing the poor quality of the dikes in the south of the country, it was until 1953—after a devastating flood in Zeeland, which killed approximately 1800 people—that this project started. This project significantly improved safety in the entire region (Van de Ven 2003; Van Steen and Pellenbarg 2004). The Delta project of the large rivers. After a number of floods happened or threatened to occur along important rivers entering The Netherlands from Germany and Belgium, it was decided by the government that more protection along all major rivers was necessary to keep The Netherlands and its people safe. These events led to a reinforcement and increase in the levels of extensive tracts of river dikes (Van Steen and Pellenbarg 2004).

These three major infrastructure projects show some of the core governance challenges The Netherlands faces in order to keep the cities and their people safe from water in the form of floods. Even though The Netherlands has developed its water governance based on a ‘traditional engineering’ to prevent floods and having defence as its key goal; recently it has started to use a ‘new’ paradigm that combines innovative architecture, urbanisation and landscape. The overarching idea of this new approach to governing waters is to live with nature and surrender by water. In terms of groundwater, the main challenges of Netherlands are not the most common ones—i.e., pollution and depletion—and are very particular compared to the other case studies discussed in this book. Next, it will be discussed the particularities of the groundwater legal and policy framework of The Netherlands.

5.4 Groundwater Legal and Policy Framework The Netherlands, as part of the European Union (EU), has to follow EU policy and law regarding water and general environmental issues. In the EU, the key instruments for groundwater governance are: the 2000 Water Framework Directive (WFD) (Directive/2000/60/EC) and the 2006 Groundwater Directive (Directive 2006/118/EC). The WFD provides for an essential dimension of groundwater governance as it establishes river basin management principles. It defines a geographical area determined by a river or stream catchments limits, including surface and groundwater, taking into account interactions between groundwater and surface water in the basin, between water quantity and quality, and between land and water, upstream and downstream, which turns river basins from a geographical area into a coherent system. The WFD has been considered by many scholars a holistic piece of regulation as it also involves land-use planning, agricultural policy, environmental management, and

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other policy areas (Fried et al. 2018). The WFD establishes the protection of surface and groundwater in order to achieve good status objectives, which include quantity and quality concerns. It is based on specific milestones and operational steps that have to be undertaken by all EU countries. Particularly for groundwater, the WFD establishes that all countries have to implement the necessary measures to prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all groundwater resources. This means that all countries have to protect, enhance, and restore groundwater systems, ensure a balance between extractions and recharge capacity, with the overarching aim of achieving good qualitative and quantitative status of groundwater. Furthermore, the WFD requires the implementation of measurements to reverse concentration of pollutants resulting from human activities, in order to progressively lessen groundwater contamination. Despite the recognition of groundwater and measures taken in the WFD, this piece of legislation did not include enough details about how to better regulate and protect groundwater (Fried et al. 2018). Therefore, the need to design a groundwater specific directive. Among the main purposes of the 2006 Groundwater Directive is to establish detailed regulations to prevent, control, and address groundwater pollution. In order to achieve this, the Groundwater Directive establishes the concept of groundwater quality standard, which means an environmental quality standard expressed as the maximum concentration permitted of a particular pollutant, group of pollutants or indicator of pollution in a groundwater body (Directive 2006/118/EC, Art 2). This directive also establishes quality criteria that considers local characteristics and allows for further improvements to be made based on monitoring data and new scientific knowledge. Despite the significant improvements on (ground)water law reached through such instruments, some legal scholars have highlighted limitations in their implementation and enforcement (Zingraff-Hamed et al. 2020). Other legal scholars argue that the WFD does not sufficiently recognise the different contexts and stages of development within the EU (van der Brugge et al. 2005). Moreover, these legal scholars emphasise that the implementation and enforcement of the WFD must primarily be understood as an ongoing learning process, within which ambitious environmental goals might not be fully met (van der Brugge et al. 2005; Zingraff-Hamed et al. 2020). Additionally, it has been pointed out the need to consider existing structures and practices rather than attempt a complete reform. Without considering the context-specific aspects of each country, city, and community that co-exist in the EU, measures to reach equity and sustainability in groundwater governance will not work, even when formally introduced (Pahl-Wostl et al. 2008). Having said that, the discussion turns to the national legal instruments of The Netherlands, where a detailed discussion of the 2009 Water Act is presented. Similar to Australia, The Netherlands has one holistic water law, the 2009 Water Act. This law represents the unification of many different legal frameworks. Table 5.1 shows the development of the Dutch surface and groundwater legal frameworks. It is important to note that the 2009 Water Act explicitly recognises the particularities of groundwater—and includes particular groundwater provisions. It is committed

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Table 5.1 Development of surface and groundwater legal frameworks in The Netherlands Year

Legal and policy frameworks

1904

Land Reclamation Act. It regulates the reclamation of land in the polders

1908

Rivers Act. It seeks to ensure the wellbeing of important rivers such as the Rhine, the Meuse and the Schelde and all other streams that are in open connection with these rivers

1958

Delta Act. It formally confirms the Deltaplan such that the Delta works could start

1969

Surface Waters Pollution Act. It provides regulation for freshwater quality/pollution, effluent waste water/discharge, authorisations/permits, royalties/fees

1981

Groundwater Act. It included all extraction and related activities to groundwater infiltration and recharge

1989

Water Management Act. It regulated the use of surface waters and core elements regarding policy/planning and the institutional framework

1991

Water Boards Act. It provides dispositions for the dissolution and creation of water boards. It also regulates the tasks and arrangement of the water boards and the composition of their boards

1992

Marine Pollution Act. It regulated the pollution in seawater

1995

Delta Act Major Rivers. It seeks to rapidly approve strengthening and improving the dykes along the Rijn and Meuse and their contributories as well as new dykes along the Meuse

1996

Flood Defence Act. It seeks to insure the protection by embankments (waterkeringen) against floods by outer water and regulations connected to this

2009

Water Act. It represents the unification of many legal frameworks including the 1969 Pollution of Surface Water Act, the 1981 Groundwater Act, and the 1992 Marine Pollution Act

Source Author

to use and govern water while considering the hydrological cycle approach. It defines groundwater as: ‘water below the surface of the earth, including the substances therein’ (Water Act, S 1). The main objectives of the Act are the prevention and mitigation of flooding, swamping, and water shortages, as well as the protection and improvement of the chemical and ecological quality of water systems, (Water Act S 2.1). Furthermore, the Water Act seeks to foster the achievement of a number of EU water objectives such as sustainability and equity. The Water Act establishes flood defence safety standards as well as standards regarding water quantity, water quality, and fulfilment of functions. To achieve this, Sects. 2.12, 2.13 and 2.14 lay down, monitoring, and assessments specifications. Section 3.1 establishes the complex organisation of water governance and management, which includes the national ministers, the provinces and the municipalities. These institutions shall coordinate their water governance and management activities. The Water Act also stipulates the need to draw water plans, of different scales. First, there is the national water plan, which has to be designed by the respective ministry. Then, there are the regional plans done by the provinces, and finally there are the management plans, which are designed by the water boards/authorities. When

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designing them, responsible authorities must ensure that they establish specific rules to guarantee their operationalisation. All plans shall be subject to review once every six years. The national water plan should contain the main elements of national water policy and the associated aspects of national spatial policy. At least, it should include: (i) (ii) (iii) (iv) (v) (vi)

indications of the desired development, operation, and protection of the water systems and timetables; description of the measures and provisions needed to realise such development, operation, and protection; indications of financial consequences of the policy; river basin management plans for the Rhine, Meuse, Scheldt, and Ems rivers; North Sea policy; functions of the national waters.

The regional and the national water plan shall include at least: (i) (ii) (iii)

indication of the desired development, operation, and protection of the water systems and timetables; description of the measures and provisions needed to realise such development, operation, and protection and; indication of financial consequences of the policy

The regional plans should define the functions of the regional waters; and all the provinces together should ensure that the regional water plans cover the complete territory of all the provinces. These management plans should include: (i)

(ii) (iii) (iv)

a supplementary programme of measures and provisions to those established in the national or regional plan regarding measures for development, operation and protection of national or regional waters; additional allocation of functions to national or regional waters; a plan for the implementation of the management; estimation of financial resources needed to implement the management.

The Act states provisions for the constructions and administration of water management structures. Section 5.1 indicates that water authorities/boards should write the conditions that water management structures shall be subject to in terms of orientation, shape, dimension, and construction. The conditions should include a technical management register regarding all flood defence structures. Further regulations shall be included by provincial order when water management structures are governed by the state. Section 5.29 establishes provisions regarding danger to water governance structures, it says that the water authorities/boards should arrange for drills to be held to practice effective action in case of danger. The water authorities/boards shall draw up an emergency plan for the water structures. Chapter 6 provides the rules for water permits, including discharge into surface water bodies, and extraction of groundwater. The permits for discharge (to introduce substances) are granted by the respective ministry—when it comes to national water—and by the water authorities/boards—for regional waters. Chapter 6 says that

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the permits to extract groundwater or recharge water are granted by the provinces. Likewise, it establishes the necessary coordination that might exist between the Act under discussion, the Environmental Management Act, and the Nuclear Energy Act. Chapter 7 is key to regulate financial resources. Section 7.2 stipulates that a pollution tax should be imposed on discharges into bodies of surface water. This may be done under state governance for national waters and under the water authority/board for regional waters. The revenue of the pollution tax should be used to fund waterrelated systems and other needs (national or regional). The pollution tax is based on the quantity and nature of the substances discharged in the course of a calendar year. Chapter 7 also stipulates an important provision on compensation; Sect. 7.14 says that any person who suffers damages as a result of the legal exercise of a water management duty, will be awarded by the administrative authority. In addition, Chap. 7 establishes subsidy for measures regarding primary flood defence structures. This involves the possibility of having the respective minister upon request, granting a subsidy to a water authority/board in order to implement the rules laid down in Chap. 2 regarding flood defence structures. Chapter 8 stipulates specific regulations regarding compliance and enforcement of the rules set out in the Act. Chapter 9 indicates the possibility of accessing judicial procedure (e.g., courts), and establishes that, if the court rules in favour of an appeal against a decision made in accordance with the Act, the court could decide that the administrative authority that made the decision may have the opportunity to remedy the defect discussed. Finally, Chap. 10 sets out the final provisions. For examples it says other rules may be created on the subjects discussed in the Act for the enforcement of international or EU obligations relating to matters of surface and groundwater governance, as well as for the effective enforcement of the Act. The previous discussion, illustrates that the Dutch Water Act is a holistic piece of legislation including surface and groundwater, which provides consistent mechanisms for regulation, planning, and governance. However, it also shows the complexity of surface and groundwater planning and governance in practice, such as its multilayer character at local, provincial, national, and even at the EU level. This complicates the responsibilities of the actors involved, as they sometimes might overlap. Moreover, it is interesting to note the fact that the Water Act largely ignores groundwater excess.

5.5 Institutional Framework of Groundwater Governance Groundwater law and governance in The Netherlands is often overwhelmed by a plurality of actors, institutions, norms, mechanisms and practices. Smit (2004) highlights that the organisation of water governance responsibilities in The Netherlands is chaotic. In each region or sub-region of the country, water governance responsibilities are shared between a number of actors and often in many different ways. Some of the key actors involved in groundwater governance are: (i) the provinces, (ii) diverse national ministries, (iii) various departments of the Rijkswaterstaat (national water

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authority), (iv) the municipalities, (v) the water authorities/boards, (vi) the drinking water companies and, last but not least, (vii) the homeowners. These actors have important responsibilities to fulfil: Provinces. Each of the 12 provinces has the responsibility to deal with its integrated spatial and environmental planning. They equally have the responsibility of supervising the regional water authorities and all the aspects dealing with groundwater regulation, including the granting permits for groundwater extraction. The provinces are also in charge of the coordination with other regional policy areas such as: spatial planning, environment, and development (OECD 2014). Ministries. The ministries include Transport, Public Works and Water Management, Housing, Spatial Planning and the Environment, and Agriculture, Nature and Food Quality (Water Act, S 1.1). These ministries tend to change their names as well as their functions in the different provinces. However, they are responsible of water issues, spatial planning, flood defence and protection, planning of national water policy as well as co-ordination with other policy areas including environment, economic development, infrastructure, and agriculture (Water Act, S 3.1). Rijkswaterstaat. This is the Dutch national water authority. In 1798, a national organisation known as the Bureau voor den Waterstaat was established. Its name was changed to Rijkswaterstaat in 1848, assigning to it tasks like construct, manage, and maintain rivers, canals, flood defences, and polders, as well as building the rail network, erecting and maintaining bridges and roads alongside the water (Van Steen and Pellenbarg 2004). Municipalities. The 408 municipalities of the country have the responsibility or duty of care within their territories. They are responsible for taking protection measures within the public space in order to prevent or limit structurally adverse consequences that might affect its citizens (Water Act, S 3.6). Water authority/board. Even though for the purpose of this book these two concepts are used interchangeably, there is an important difference to notice: the water board is the council of the water authority. Historically, the control and management of water in The Netherlands has been locally organised. Since the twelfth century, locally structured organisations were created to maintain the water level of the lands in their regions and villages. In the thirteenth century the current water authorities/boards came to existence and became the first democratic authorities in The Netherlands (Van Steen and Pellenbarg 2004). Back in that time, the provinces used to control the water authorities/boards. The historical task of flood control or other natural disaster control has been widened and the water authorities/boards are now responsible for a number of duties such as land use planning, nature conservation, and climate change mitigation and adaptation. Public drinking water companies. Currently, there are 10 public drinking water companies operating in The Netherlands, which are responsible of providing drinking water for human consumption. Some of these companies use groundwater as a major source of their water (OECD 2014).

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Homeowners. The homeowners are responsible for the condition of their land, and for any loss or damage resulting from failure to meet these responsibilities. They must prevent encroachment of groundwater onto their land, in, under, and around their property. The same applies to water shortage problems. In addition, the homeowner may not cause trouble to groundwater that is flowing along his/her property (Teeuwen 2017). This is very particular for The Netherlands in terms of responsibility and liability regarding the homeowners. The law gives personal responsibilities to individuals; therefore, it is interesting to explore if this has any consequences for the involvement of people in groundwater governance. This is the reason why this chapter also explores the demands of the people of Delft towards government institutions (Fig. 5.1).

National level – Various ministries Dealing with water planning, water policy, flood protection, and co-ordination with other areas (e.g. agriculture, development).

National level – 1 National Water Authority (Rijkswaterstaat) Operation and maintenance of main water system.

Provincial level – 12 provinces Dealing with integrated spatial and environmental planning, supervision of water authorities, groundwater regulation (including permits to extract groundwater) and coordination with other regional policy areas (e.g. environment and development).

24 Regional Water Boards/Authorities

408 Municipalities

Dealing with operation and management of regional waters, flood defense, water quality and quantity, waste water transport and treatment.

Dealing with local spatial planning, sewerage collection and wastewater transport, urban drainage, and storm water collection.

The homeowners Dealing with preventing encroachment of groundwater onto their land, in, under, and around their property, water shortage problems, may not cause nuisance to (ground) water that is flowing along their property.

10 Public Drinking Water Companies Dealing with provision of water for human consumption.

Fig. 5.1 Institutional framework of water and groundwater governance in The Netherlands. Source Author

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5.6 The Conundrum of Groundwater Excess 5.6.1 Location and Importance Delft is a city and a municipality in the province of South Holland, in the west of The Netherlands. It is located between the Hague—to the northwest—and Rotterdam to the southeast. It covers an area of 24.06 km2 and has a population of 103,163 inhabitants. Delft is a popular touristic destination in the country; it has historical relevance as it played a highly influential role in the Dutch Golden Age. Currently, Delft, as some other Dutch cities such as Enschede and Eindhoven, is experiencing the big concern of groundwater excess. Therefore, this case study shows a contrasting situation compared to the other case studies concerned with pollution and depletion. It is pivotal to include groundwater excess mainly due to three reasons: (i) there has been little research discussing the problem of groundwater excess; (ii) whereas overexploitation leads to a shared problem understanding (scarcity of water resources), the problems resulting from groundwater excess are more diverse for different actors; and (iii) given that groundwater excess is a relatively unknown groundwater problem, it presents a ‘grey’ area in groundwater law (Fig. 5.2).

Fig. 5.2 Map illustrating the case study of Delft and main groundwater resources. Source Author

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5.6.2 Background and Context Industrial groundwater extraction in Delft initiated in 1916, by the predecessors of the company DSM Gist for cooling of industrial processes. In 1996, that company obtained a permit to extract 13.8 million m3 per year. Actually, groundwater extracted through 33 pumps is in the order of approximately 12.3 million m3 per year (Gehrels et al. 2005). As the cooling processes of DSM Gist can also use surface water in winter, the actual extraction rate of groundwater varied between winter (1200 m3 per hour) and summer (1600 m3 per hour).1 In 2004, DSM Gist indicated that they wanted to reduce groundwater extraction to a little over 4 million m3 per year, as their production processes became more efficient and no longer required such a large amount of water. In 2007 the company announced that it would cease groundwater extraction (de Kat 2016). Immediately, the municipality of Delft, the province of South Holland and Delfland (the water board of Delft) initiated a court case against the company to ensure the continuity of the groundwater extraction as they were having serious concerns about the implications of a full stop of groundwater extraction. The claims against the company were not accepted by the court, which decided that the private company could not be forced to continue the groundwater extraction (Teeuwen 2017; Cuadrado-Quesada and Schwartz 2021). The court also indicated that if purposeful actions of DSM Gist caused damages to external parties, the company would be responsible for these damages. Therefore, the company could not be forced to stop pumping, but it would be legally accountable for damages as a result of their actions. As such, if the company wanted to reduce extraction, it needed first to be sure that houseowners and government agencies that would be impacted could take precautionary measures, such as waterproofing their houses—particularly the basements, strengthen the dykes and improving the draining system. For this, the court decided that a period of five years was suitable—meaning that after this period the company could stop the extraction. According to some authors the impact of stopping groundwater extraction by DSM Gist could lead to a rise in the hydraulic head of 1 m (at 5 km of the wells) to 10 m (at the site of the wells). This change reduces the rate of infiltration of groundwater into the underlying aquifer.2 The rate of infiltration is reduced or can potentially even lead to groundwater reaching the surface (seepage) as the normal groundwater level is approximately 1 m below the surface (Teeuwen 2017; de Kat 2017). Initial calculations suggested that, in an area of approximately 50 km2 surrounding the groundwater wells, the rate of infiltration and seepage could likely be affected. The impact of stopping groundwater extraction by DSM Gist will not only impact Delft, but also other municipalities like the Hague. According to some experts, approximately 2400 households of Delft and around 1700 households in the Municipality of the Hague will experience flooding events (Gehrels et al. 2005). 1

The extracted groundwater is brackish and has a chlorine content between 1500 and 3000 mg per litre. 2 This aquifer lies at a depth of 20–40 m and consists of clay and sand.

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Another impact (related with stopping groundwater extraction) is the land subsidence (van Asselen et al. 2018). Much of the soil on which the city of Delft is built, consists of peat-rich lands. A significant problem facing cities and towns located on such peat-rich lands is that the volume reduction of soil leads to land subsidence. This volume reduction is the result of two processes. The first one is peat compaction, which is a mechanical process of volume reduction due to the expulsion of pore water induced by an increase in effective stress. The second process is oxidation, which refers to a biogeochemical process of soil organic matter decomposition by micro-organism. Both processes lead to a volume reduction of the soil (van Asselen et al. 2018). Land subsidence is also likely to accelerate as a result of climate change, as associated rise in sea level will increase the hydraulic heads in the groundwater system (Oude et al. 2010). The rising groundwater levels combined with high levels of land subsidence has two core negative consequences. First of all, during the more than 90 years that DSM Gist was extracting huge amounts of groundwater, the city of Delft grew considerably. Houses were constructed with the idea that the (artificially) low groundwater levels would be maintained. However, halting groundwater extraction significantly alters the groundwater hydrology and will likely lead to increased flooding for a large number of homeowners. De Kat (2009), citing a study of the Province of South Holland, suggests that rising groundwater levels could damage between a few hundred to 10,000 dwellings. A representative of the Municipality of Delft has even indicated that, land subsidence is a greater threat to Delft than rising groundwater levels as a result of the halting of groundwater extraction. Second, as the aquifer underlying Delft is brackish with chlorine contents up to 3000 mg/l, rising groundwater levels and increasing occurrence of seepage may lead to the salinisation of agricultural soils. As such, the combination of rising groundwater levels due to the stopping of groundwater pumping, sea level rise and land subsidence are likely to lead ‘to elevated risks of flooding and increasing upward seepage of brackish and nutrient rich groundwater’ (Hoogland et al. 2012). Taking into account the possible adverse consequences of stopping groundwater extraction and following the court case of 2007, the Municipality of Delft, the Province of South Holland, and Delfland agreed in 2009 that they would continue extracting groundwater and sharing the associated costs. Extraction costs and discharging the water into the North Sea amounts to approximately e2.8 million per year (de Kat 2016). After this background and context, the discussion continues with two main stories on (i) the responses of the Dutch Government Agencies to the problem of groundwater excess; and (ii) the organisation and demands of the community of Delft towards government institutions. Finally, it is presented a reflection on sustainable use of groundwater in Delft.

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5.6.3 Responses of the Dutch Government Agencies The key issue in this discussion is the possible adverse effects of stopping the longterm groundwater extraction done by a private company, DSM Gist. In order to address this situation, the government agencies involved in groundwater governance in Delft, i.e., the municipality, the province of South Holland, and Delfland agreed in 2009 to develop a collaboration in the form of a shared governing entity that would take over water extraction from the private company. The responsible institutions could not identify a productive use for the extracted groundwater, amounting to some 22.8 million litres per day (de Kat 2016). This meant that the extracted groundwater was discharged without using it. It was extracted with the only aim of keeping the city and the people of Delft safe. The collaboration between the parties ended in 2014. The collaboration since it began was limited to a period of 5 years—following the court ruling. Therefore, after 5 years of working together, the province of South Holland and Delfland were ready for an ‘exit-strategy’ to the problem. During this exit strategy the province and the water board adhered to a narrow interpretation of their legal mandates. The province of South-Holland argued that they were not responsible for local specific problems such as this one of excess. Similarly the water board argued that it had strengthened the dykes sufficiently to endure higher groundwater levels and therefore it could also leave the collaboration. After leaving, the water board paid the municipality of Delft e7.6 million (de Kat 2016). It seems that the reason why the municipality of Delft had to continue pumping groundwater largely relate to its hesitation to take precautionary measures to deal with rising groundwater levels. Moreover, it started improving its drainage systems at a relatively late stage, only completing the improved draining system in 2015 (Cuadrado-Quesada and Schwartz 2021). Given the costs involved in pumping the groundwater, the municipality of Delft started a phased reduction of groundwater extraction in 2017. In this phased approach, groundwater extraction will be reduced by 10% each year over a period of 10 years. The end goal of is to completely stop the groundwater pumping by 2030. During this approach, the groundwater levels will be monitored to establish how the reduction is impacting groundwater levels. The first indications are that the initial reduction (pumping 1080 m3 per hour instead of 1200 m3 ) has not impacted the groundwater level (de Kat 2017). It is interesting to note that the Water Act in its Article 3.6 stipulates that the municipalities—as local governments—need to ensure that measures are taken in public urban areas to prevent or limit structural negative effects of the groundwater level as far as this responsibility is not tasked to the water board or the province. This is an effort obligation for the municipality; however, not a result obligation (Teeuwen 2017). As the municipalities are responsible to prevent or limit structural negative effects in the public spaces in their cities, it is logical that they are also responsible to keep the inhabitants safe. This includes safe from water, floods, storms, and groundwater, which can cause land subsidence. Due to the legally defined responsibilities (Water

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Act), the municipality is not responsible for private land, which implies that there is no measurement data available for these areas. If the municipality were allowed to perform measurements on private land, more certainty could be achieved about the groundwater system and possible bottlenecks. Even though the municipality of Delft has taken the overall control and execution of the pumping of groundwater, following its legal obligations, there is another reflection to be made. It seems that the province of South Holland and Delfland left the collaboration because they were confident that they had fulfilled all their legal obligations regarding groundwater. However, that was not the case for the municipality of Delft. The municipality started to improve the drainage systems at a relatively late stage, only completing the improved draining system in 2015. As highlighted by an interviewee, ‘The municipality was sleeping…they were not prepared…they were very late in improving the drainage system…that is why in the end they were left alone…’ (Interview The Netherlands No. 17, Government official, 12 October 2018). Currently, the situation in Delft has been contained. However, the future seems uncertain. According to research conducted in Delft, the extraction of groundwater cannot be substantially reduced without causing problems (Raadgever 2009). This research shows that if extraction would be significantly reduced, groundwater levels would rise, causing flooding of cellars. Moreover, research shows that levees might become unstable and the ground level would change to different degrees, causing damage to buildings (Hoogvliet et al. 2012). Therefore, it seems that the only possible governance strategy to deal with groundwater excess in Delft at the moment is to continue pumping, even though this water is only being pumped to be thrown into the North Sea. A fundamental aspect in which most researchers, scholars and government officials agree upon is that intensive monitoring would be required to signal the future effects of groundwater excess (Raadgever 2009; Hoogvliet et al. 2012; de Kat 2017) and guide on how to address this conundrum in the years to come.

5.6.4 The Organisation and Demands of the Community of Delft Towards Government Agencies—A Reflection on Equity in a Country of the Global North The community of Delft (mainly the homeowners), understanding that they could eventually face damages in their properties due to groundwater excess, got involved and started to participate in groundwater discussions with government institutions. According to interviews conducted during fieldwork in Delft, most people argue that the municipality of Delft should take measures to ensure that homeowners are not loaded with unreasonable costs, if damage in their houses occur. Most people are claiming that intensive dialogue between the municipality and the homeowners is required. As pointed out by an interviewee: ‘A participatory process should be a structural part of the scaling back of extraction at the DSM Gist. Only then a conflict

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situation, with possible long running judicial processes, between the municipality and citizens can be prevented’ (Interview The Netherlands No. 14, Homeowner, 11 October 2018). It seems that a key concern that many people have in Delft is, whether it is safe to scale down groundwater extraction, and whether it is safe to completely stop groundwater extraction at the DSM Gist site. There are huge interests at stake for the people of Delft, especially for the homeowners. This is because according to the law even though the municipality is responsible for the damages suffered in public areas from flooding whenever that happens in private houses it is the responsibility of the homeowners. Therefore, homeowners in Delft are concerned because if something happens to their houses due to excess of groundwater, they are responsible to repair and pay for any damages. Due to these concerns, homeowners started to access information about the groundwater situation in Delft and participating in public meetings where the topic was raised. The plan of the municipality is to continue with the scaling down of the groundwater extraction, for the next years (until 2030). However, the homeowners have highlighted that the municipality needs to verify that a careful monitoring program continues and to ensure that the effects of the phased descaling can be tracked so it can be modified if necessary. Moreover, the homeowners have demanded that the municipality creates a better dialogue with them as they claim that so far it has not been adequate. Despite the peculiarities of this case study, people’s responses to problems are significantly similar to what was shown in Angas Bremer. Five key factors were present in this case study, namely: groundwater crisis/problems (excess of groundwater and land subsidence), participation, leadership, being a relatively small-scale city, and funding/involvement of government institutions. The problems unlocked people’s involvement, organisation, and participation, which facilitated an input in groundwater governance. The findings of this case study confirm, as with Angas Bremer, that crisis/chaos/severe problems can motivate people to take actions and demand better performance from government institutions (Ostrom 1990, 2010; Gunderson et al. 1995; Cuadrado-Quesada and Gupta 2019). Another factor that appears to have contributed to mobilise people and get them participating in public meetings was an active leadership. It is worth mentioning the people’s association of the city centre of Delft, which was privileged to count with a number of good leaders (e.g., former government officials from the Ministry of Environment) among its members. Those leaders motivated people in Delft to get involved in addressing groundwater excess concerns. As expressed by an interviewee ‘We have organised ourselves with the help of knowledgeable people from Delft… we have been able to have a seat at the discussion table and we have manifested our main concerns’ (Interview The Netherlands No. 20, Homeowner, 14 November 2018). As it was discussed in the Angas Bremer case study (Chap. 3), it is important to relate leaders with chaos/crisis/severe problems because they often interact. This case study also illustrates how some leaders arose when the discussion about possible houses being damaged sparked. Moreover, the findings of this case study disclosed how important is that leaders have knowledge about water resources, for example, some of the leaders are engineers who used to work at government entities.

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Besides problems, participation and leadership, a core factor that facilitated collective governance in this case study was the fact that Delft is a relatively small-scale city. For most of the inhabitants and especially homeowners, getting together to pressure the municipality was easy due to the fact that they all have the same concerns and interests. It is interesting to reflect on power relations within the context of the city of Delft. In Delft, power distance between different actors—the province of South Holland, Delfland, the municipality and the homeowners—is relatively small. This relatively balanced power relations is founded in the overall equity that exists in Delft and in general in The Netherlands. The actors involved which include the government officials as well as the representatives of DSM Gist and the people of Delft, however with very different backgrounds and professions, have a similar education, social class, and similar knowledge and understanding of the situation as well as the possible damages, which facilitates a rough balance of power in decision-making. That was illustrated by the years of negotiations where all the parties had the opportunity to express their views and concerns and ended up with a decision that all the parties agreed (to an important extent) with. It seems that two unique characteristics were found in this case study: (i)

(ii)

the roughly similar power, which was evidenced in the negotiation and decision-making processes on how to deal with the situation of groundwater excess in Delft; the agreement that continuous monitoring is fundamental to decide upon future decision-making, meaning that the scaling back and eventual full stop of extraction will only happen if there is a high level of certainty that it is safe for everybody.

However, is sadly ironic that the eventual payment of damages suffered by homeowners is being negotiated by the two actors that have the least financial scope to burden the costs of the crisis—the municipality and the homeowners. The municipality of Delft balanced on the verge of bankruptcy in 2017 as a result of undertaking a number of large construction works, with a financial shortage of close to e141 million (Van de Stadt 2017). At the same time homeowners, who have most of their capital invested in their houses, are unlikely to be able to easily pay the additional costs for waterproofing their houses. As highlighted by an interviewee: ‘we are really worried about potential damages and the high costs to repair them’ (Interview The Netherlands No. 21, Homeowner, 14 November 2018). The last core factor present in this case study is government funding. Without the appropriate investment of millions of euros in producing knowledge, data, and monitoring of groundwater resources from government institutions, the situation in Delft could have been hazardous. In short, government funding to produce scientific information and knowledge to deal with groundwater problems is fundamental for governing groundwater resources.

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5.6.5 A Reflection on Sustainable Use of Groundwater Resources in Delft Even though this case study does not evidence an unsustainable manner of using groundwater resources, at least not as conceptualised in Chap. 2—extracting more water than the one produced by its own recharge capacity and introducing toxic substances—it shows an irrational use of groundwater (Raadgever 2009). The case study of Delft shows how groundwater can be used in an irrational manner even when there is no depletion of the resource. This because its use by a private actor was so high that it altered the natural groundwater levels, the soil, the landscape, and life in Delft. Private companies like DSM Gist should have more legal responsibilities when their economic activities cause problems such as creating a new artificial level of groundwater. Legal responsibilities should be in line with the time they have exploited groundwater and the profits made. Finally, the discussion in this chapter shows that problems as a result of groundwater excess were quite diverse. Some actors, with sufficient financial resources, may be able to mitigate the impact of groundwater excess, as illustrated by Delfland, which strengthened the dykes for which it is responsible. Other actors, like the municipality and the homeowners, were not able to alleviate the problem of groundwater excess. As a result, how the different actors understand and deal with the problem of groundwater excess is quite diverse. The combination of the diverging common purpose and the unclear provisions in groundwater law regarding excess, evidenced another layer of complexity to groundwater governance.

5.7 Conclusion This chapter discussed groundwater law and governance in The Netherlands. It included a discussion of the 2009 Water Act, an overview of the development of water infrastructure in The Netherlands and an analysis of the institutional structure for groundwater governance and mentioned some common groundwater practices. Moreover, using the case study of Delft, it illustrated how groundwater practices of high level of extraction can induce not only scarcity but flooding—while artificially manipulating groundwater levels. In Delft, it was particularly revealing that the level of engagement spurred by groundwater and potential adverse effects, like flooding, ended up in a collaboration, which was later on dismantled mainly due to politics. It also evidenced how different actors experienced differently the problem of groundwater excess. The findings also demonstrated that public discontent tend to be incorporated into government discussions and decision-making when it happens in places where inequality is relatively low. The existence of crisis/chaos, participation, leadership, being a small-scale city and government funding, were important factors of such

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achievement. For example, this case showed that a potential crisis served as a catalyst to spur attempts to develop a better dialogue between the municipality and the people in Delft. The people of Delft understood that there was a quantity problem which could jeopardise their entire city. This is a very different scenario from many stories told in this book and elsewhere. Linked to the factors of crisis/chaos, leadership and awareness, is important to mention that government support was essential to achieve social trust and agreements. Delft shows that when people work together with government agencies at very local levels, like the municipality, the results are generally positive. The big question now is: is it better that the municipality has the sole responsible for the groundwater conundrum? Or would it be better to have a collaboration including the province of South Holland and Delfland? In this case study the government institutions fostered participatory processes and provided funding and expertise to do monitoring and understand the behaviour of groundwater over time and to avoid undesirable consequences. Interesting is to mention that the situation of groundwater excess in Delft showed some shortcomings in groundwater law in The Netherlands. It was evidenced that the legal framework largely ignores groundwater excess, which presents a significant challenge for governance. Government institutions and people from Delft have expressed that it is important to include in the Water Act or other legal instruments more responsibilities for groundwater users regarding excess. Being the main idea to include water issues more broadly as environmental and planning issues. Currently, there is a discussion to have a new integrated law—the Environment and Planning Act—which will incorporate the Water Act, the Environmental Act, and the Spatial Management Act. In addition, proactive factors for addressing the challenge of groundwater excess are needed in Delft. Firstly, government agencies that deal with control and monitoring of groundwater resources need to continue providing pertinent information and improve the dialogue with citizens in Delft, especially with homeowners. As one respondent explained, ‘The municipality is not fomenting enough dialogue with the homeowners…we need to keep asking in order to get information…’ (Interview The Netherlands No 16, Homeowner, 12 October 2018). Secondly, government support is necessary to conduct research, monitoring and raise awareness of the current groundwater situation and for the development of better city planning to address avoidable groundwater crisis and situation like this to happen in the future. Thirdly, there is the question of how to better regulate groundwater excess when it is clearly caused by a long time use of a private company which only aim was profit. Finally, this case study showed a considerably different situation on how groundwater can be used in an irrational manner. It illustrates that even though there was no depletion of the resource, its use for almost 100 years was irrational. The usage was so high that it altered the water levels. Hopefully, situations like this one will be better tackled in the future in Delft and beyond. This case study illustrates that common definitions of sustainable use do not cover all possible scenarios, especially

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when long-term usage intersects with development, planning, and infrastructure. The table below summarises the Case Study of Delft (Table 5.2). Table 5.2 Summary/Delft, South Holland, The Netherlands Abstract/Delft, South Holland, The Netherlands Location: Contextual Factors: Delft is located between the Hague—to the • The country has a strong groundwater northwest—and Rotterdam to the southeast, in specific governance since the development, the province of South Holland, in the west of in 1981, of a Groundwater Act which The Netherlands, North-Western Europe regulated all extraction and related activities of groundwater • The Netherlands has one holistic Water Law which explicitly recognises the particularities of groundwater, prevents and mitigates flooding, and establishes the creation of national and regional water plans, among other points • The Water Law incorporates a plurality of actors and their responsibilities • The Water Law largely ignores groundwater excess • In Delft, power distance between stakeholders—the province of South Holland, Delfland, the municipality and the neighbours or homeowners—is relatively small • The community of Delft got involved in groundwater governance to ensure that homeowners were not loaded with unreasonable costs, if damage in their houses occur due to groundwater excess Situation: • In terms of groundwater, the main challenge of The Netherlands is the excess. Due to the low elevation and flat topography, The Netherlands historically has developed important water infrastructure projects to keep the country safe from floods • Since 1916, the predecessors of the company DSM Gist, obtained a permit to extract 13.8 million m3 of groundwater, per year • In 2004, DSM Gist indicated that they wanted to reduce groundwater extraction • In 2007 DSM Gist indicated that they would cease groundwater extraction. Immediately, the municipality of Delft, the province of South Holland and the water board Delfland initiated a court case against the company. The court decided that the private company could not be forced to continue the groundwater extraction, but if the company wanted to stop extraction, it needed to be sure that houseowners and government agencies that would be impacted could take precautionary measures and established a period of five years for it. Halting groundwater extraction could significantly alter the groundwater hydrology and could lead to flooding for a large number of homeowners (continued)

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Table 5.2 (continued) Abstract/Delft, South Holland, The Netherlands Results: • The municipality of Delft, the province of South Holland and the water board Delfland, agreed in 2009 that they would continue extracting groundwater and sharing the associated costs and the extracted groundwater would be discharged without using it • The collaboration between the municipality, the province and the water board ended in 2014 • In 2016, the municipality of Delft took on the sole responsibility for groundwater extraction • The municipality of Delft started a phased reduction of groundwater extraction in 2017, 10% each year over a period of 10 years • During this period, the groundwater levels will be monitored to establish how the reduction is impacting groundwater levels in the territory. The first indications are that the initial reduction (pumping 1080 m3 per hour instead of 1200 m3 ) has not impacted the groundwater level • Delft shows that when people work together with government agencies at very local levels, like the municipality, the results are generally positive Source: Author

Legal Frameworks 2000 Water Framework Directive, Council Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community Action in the Field of Water Policy. 2006 Groundwater Directive, Council Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the Protection of Groundwater Against Pollution and Deterioration. 2009 Water Act, Government of the Netherlands.

Interviews Conducted The Netherlands Interview No 14, Homeowner, 11 October 2018. Interview No 16, Homeowner, 12 October 2018. Interview No 17, Government official, 12 October 2018. Interview No 20, Homeowner, 14 November 2018.

References Cuadrado-Quesada G, Gupta J (2019) Participation in groundwater governance: outlining a path to inclusive development. Water Policy 21(5):1050–1064 Cuadrado-Quesada G, Schwartz K (2021) Governing groundwater excess: insights from a failed collaborative process in Delft, the Netherlands. Int J Water Resour Dev

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De Kat H (2009) Pompen van gistfabriek overgenomen uit angst voor grote schade in Delft en omgeving. Delft op Zondag. https://www.delftopzondag.nl/nieuws/algemeen/77191/pompenvan-gistfabriek-overgenomen-uit-angst-voor-grote-schade-in-delft-en De Kat H (2016) Delft opgescheept met ongewenste erfenis van oude Gistfabriek. Delft op Zondag. https://www.delftopzondag.nl/nieuws/algemeen/81333/delft-opgescheept-met-ongewe nste-erfenis-van-oude-gistfabriek De Kat H (2017) Grondwater niet hoger, na eerste afbouw Gist-pompen. Delft op Zondag. https:// www.delftopzondag.nl/nieuws/algemeen/86051/grondwater-niet-hoger-na-eerste-afbouw-gistpompen Fried J, Quevauviller P, Vargas-Amelin E (2018) Groundwater governance in the European Union, its history and its legislation: an enlightening example of groundwater governance. In: Villholth KG, Lopez-Gunn E, Conti K, Garrido A, van der Gun J (eds) Advances in groundwater governance Gehrels H, Reijs T, Meerten H, van Rijk J, de Oostrum N, van Oude Essink G, Vergroesen T, Maas K, Buma J (2005) Quickscan DSM-spoorzone: Verkenning van duurzame oplossingsrichtingen voor het waterbeheer in delft en omgeving, Delft Cluster. https://repository.tudelft.nl/islandora/ object/uuid%3A1b3b88c7-aa65-4899-954f-4c58fbdfdda9 Government of the Netherlands 2009, Water Act 2009 Gunderson L, Holling C, Light S (1995) Barriers and bridges to the renewal of ecosystems and Institutions. Columbia University Press Hoogland T, van den Akker J, Brus D (2012) Modelling the subsidence of peat soils in the Dutch coastal area. Geoderma 171–172:92–97 Hoogvliet M, Van de Ven F, Buma J, Van Oostrom N, Brolsma R, Filatova T, Verheijen J, Bosch P (2012) Schades door watertekorte eoverschotten in stedelijk gebied—quick scan van beschikbaarheid schadegetallen en mogelijkheden om schades te bepalen. Deltaris, Delft Deltares Report 1205463–000:120 Kranenburg R (2001) Compact geography of The Netherlands. KNAG, Utrecht Meijer H (1997) Images of The Netherlands. 88. Tijdschr Econ Soc Geogr 1997:85–90 OECD (2014) Water governance in The Netherlands: fit for the future? OECD Publishing, OECD Studies on Water Ostrom E (1990) Governing the commons: the evolution of institutions for collective action. Cambridge University Press Ostrom E (2010) Polycentric systems for coping with collective action and global environmental change. Glob Environ Chang 20(4):550–557 Oude E, van Baaren E, de Louw P (2010) Effects of climate change on coastal groundwater systems: a modelling study in The Netherlands. Water Resour Res 46:1–16 Pahl-Wostl C, Gupta J, Petry D (2008) Governance and the global water system: a theoretical exploration. Glob Gov 14:419–435 Raadgever G (2009) Does collaboration enhance learning? The Challenge of Learning from Collaborative Water Management Research. PhD Thesis, TU Delft/VSSD Smit R (2004) Geld als water. Forum, July 15 2004, 10–15 Teeuwen B (2017) Stopzetting grondwateronttrekkingen in Delft vraagt om een zorgvuldige governance aanpak. Water Governance 2:37–38 Van Asselen B, Woodings S, Hackett S, van Soest T, Kok J, Raaymakers B, Wolthaus J (2018) A formalism for reference dosimetry in photon beams in the presence of a magnetic field. Phys Med Biol 63:1–9 Van de Stadt P (2017) Te weinig aandacht voor risico’s grote projecten. Algemeen Dagblad Van der Brugge R, Rotmans J, Loorbach D (2005) The transition in Dutch water management. Reg Environ Change 5:113–135 Van de Ven G (ed) (2003) Man-made lowlands, history of water management and land reclamation in The Netherlands. Uitgeverij Matrijs, Utrecht Van Steen P, Pellenbarg P (2004) Water management challenges in The Netherlands. Tijdschr Econ Soc Geogr 95(5):590–598

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Wong TE, Batjes DAJ, de Jager J (2007) Geology of The Netherlands. Royal Netherlands Academy of Arts and Sciences. Zingraff-Hamed A, Schröter B, Schaub S, Lepenies R, Stein U, Hüesker F, Meyer C, Schleyer C, Schmeier S, Pusch MT (2020) Perception of bottlenecks in the implementation of the European water framework directive. Water Altern 13(3):1–26

Chapter 6

When is Enough, Enough? Environmental Annihilation, Social Exploitation, Chemicals Running Through Groundwater and a Legal-Mix

People know what they do; frequently they know why they do what they do; but what they don’t know is what does what they do Michel Foucault, Madness and Civilisation: A History of Insanity in the Age of Reason

6.1 Introduction This chapter discusses the first country of the Global South of the book, Costa Rica. It argues that despite the reputation of Costa Rica as an environmental leader, it has long struggled with water (in)equity and (un)sustainability. The chapter introduces groundwater law and governance, where it highlights that in Costa Rica there is no defined and integrated groundwater policy or groundwater/water law. Instead, Costa Rica has relied on a mix of policies, laws and ordinances to try to achieve equity and sustainable use of groundwater. Many of the existing groundwater problems in Costa Rica are exquisitely presented in the case study of Guácimo, Caribbean. The discussion in the case study highlights the problem of groundwater resources pollution due to the exponential growth of the monoculture of pineapples. Chapter 7, continues with the discussion of grounwater law and governance in Costa Rica but focusing on the problems of overexploitation and salinity in the North Pacific region. This chapter addresses in particular the following questions: What motivates people to get involved in groundwater governance? What are common groundwater practices when there is evident pollution and environmental degradation? How can people continue to struggle after years of water pollution and environmental degradation? Do community leaders still arise under these circumstances? What are governments doing when there are private actors polluting water and destroying the environment? How do communities organise themselves to try to address the problems? What has been the role of law in addressing the overall situation of groundwater pollution and environmental annihilation?

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_6

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6.2 Costa Rica—Setting the Scene of Groundwater Law and Governance Costa Rica is located in Central America, this close proximity to the equator ensures a tropical climate. It is bordered to the North by Nicaragua, with which it shares a 309 kms border, and to the South by the Republic of Panama, with which it shares a border of 330 kms. The Caribbean Sea constitutes its eastern border, while the Pacific Ocean lies to its west. Costa Rica has seven provinces: Alajuela, Cartago, Guanacaste, Heredia, Limón, Puntarenas, and San José (capital city). These are subdivided into 82 cantons with their own local government: the municipality. Costa Rica has a population of over 5 milllion people. Like most Latin American countries, as a result of the colonisation by Spain, Costa Rica follows the civil law tradition. From an environmental point of view, the country is organised into 11 conservation areas, which are administered by the National System of Conservation Areas (SINAC, for its acronym in Spanish), which belongs to the Ministry of Environment and Energy (MINAE, for its acronym in Spanish). This ministry is the lead public agency governing natural resources, including surface and groundwater. However, as is discussed below (Sect. 6.3), there is an institutional separation in the governing of water. Since Costa Rica became independent from Spain, in 1821, until the adoption of its Constitution, in 1848, there was no legislation regarding surface and groundwater resources. Until legislation was put into place, the Roman legal tradition of recognising surface and groundwater resources in a state of natural flow as a form of common property was followed (Cuadrado-Quesada et al. 2018).

6.3 Groundwater Legal, Policy and Institutional Framework Currently, in Costa Rica there is no clear and well-defined water policy. However, there have been a number of attempts which aim to provide guidelines regarding water use and protection (Cuadrado-Quesada et al. 2018). Examples of such efforts are: • 2008, National Water Policy (Política Nacional Hídrica) • 2009, Strategy for Integrated Water Resources Management (Estrategia para la Gestión Integrada del Recurso Hídrico) • 2013–2030 Water Agenda (Agenda del Agua). The same occurs with the water legal framework. In the past two decades, due to concerns about the outdated and fragmented legal framework that governs surface and groundwater resources, various sectors of the Costa Rican society have submitted water law proposals to the Congress seeking to update the current Water Law. However, none of them has been approved yet.

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Costa Rica adopted its first Water Law on May, 1884. This law introduced the concept of water as a public good, which implied that no one could be excluded from the use of water. It also saw water as a heritage requiring protection of the government, in order to guarantee its use by everyone (Law No. XI, 1884). There was a need to regulate its use, thus water use was subject to prior authorisation from the state. However, this was contemplated only for surface water; for groundwater the requirement came a bit later. In 1910, the Hydraulic Forces Act was adopted, and its regulatory decree came to regulate water withdrawal concessions for hydropower generation. This legal instrument removed the municipality’s authority to grant water concessions and transferred it to the executive branch (Law No. 14, 1910). In 1928, the National Electricity Service was established, which was basically the regulatory water use office. In 1941, Law No. 258 led to the nationalisation of electricity and thus the foundation of the Costa Rican Institute of Electricity (ICE, for its acronym in Spanish), which replaced the previous National Electricity Service (Law No. 258 1941). At the time, water resources were primarily regulated by electricity laws, due to the importance of water for the generation of hydro-electricity (Cuadrado-Quesada et al. 2018). In addition, during 1941, the first Drinking Water Law was approved. In that moment, the law was very progressive, declaring any source of water (including groundwater) used to supply drinking water to the population, as of public domain. In 1942, a new Water Law was adopted, widening the aspects regulated by the existing legal framework. This law was also progressive for its time, declaring, for example, protection areas on private lands used as infiltration areas or springs of public water supplies. It established, for the first time, the requirement of a concession to use groundwater (Law No. 276, 1942). This law has undergone several reforms and is still in force (this law is discussed in more detail below). In 1953 the General Drinking Water Law was adopted. It recognised the relevance of water planning and the implementation of water projects; however, its focus was solely on drinking water (Law No. 1634, 1953). In 1961, Law No. 2726 created the Costa Rican Institute of Aqueducts and Sewer (AyA for its acronym in Spanish), the responsible for all issues related to the institutional framework regulating drinking water and sewer systems. The overarching aim of this law has been to set policies and promote the development of a supply of safe and sufficient drinking water, as well as the collection and disposal of sewage (Law No. 2726, 1961). AyA is closely entwined to the Administrative Associations of Communal Aqueduct and Sewer Systems (ASADAs for its acronym in Spanish), which are discussed in detail in Chap. 7. The General Drinking Water Law and the Constitutive Law of the AyA are still in force. In 1973, the attention focused for the first time on groundwater resources, due to their increasing importance for agriculture and irrigation. Thus, Act No. 5438 established the National Groundwater Service to better regulate and control the increasing use of groundwater. However, the institution did not manage to improve regulation and control and it was reformed; in 1983 a new government institute, the National Groundwater, Irrigation and Drainage Service (SENARA, for its acronym

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in Spanish), was created by Law No. 6877. This autonomous institution is politically subject to the guidelines of the Ministry of Agriculture and Livestock (MAG for its acronym in Spanish) (due to its initial focus on irrigation when first created) (Law No. 6877, 1983). Currently, this institution has a vital role in the development of hydrological studies on some of the main aquifers in Costa Rica, as well as in designing policies to protect groundwater resources such as the Water Matrix (Arias 2012). In fact, its opinions and recommendations are fully binding for all government institutions (Cuadrado-Quesada et al. 2018). To summarise, in Costa Rica surface and groundwater resources are public goods governed by the MINAE, which is the main responsible government institution for defining the policies and strategies concerning to the sector. Nevertheless, other institutions have been created with legal guidelines that go beyond simple administration (Astorga 2013). These include the SENARA which has become a guiding institution in groundwater resources policy and regulation (Arias 2011). This, however, poses an important institutional confusion between surface and groundwater resources, because even though all matters concerning surface and groundwater are regulated by MINAE through the Water Directorate (e.g., water concession/permits), strategic policies to protect groundwater resources and key studies designed to understand how groundwater resources behave are being developed by SENARA. To add a layer of complexity, often, technical studies from the Water Directorate and the SENARA are contradictory (Cuadrado-Quesada et al. 2018). Finally, it is important to highlight that the current Water Law (from 1942), despite having undergone several reforms, is not content-wise enough to properly regulate current surface and groundwater governance challenges in Costa Rica, and the law has thus been criticised as being obsolete. As many scholars have highlighted, the Water Law no longer corresponds to the social and economic situation of the country, and needs to be urgently revised and updated (De Albuquerque 2012; Cuadrado-Quesada et al. 2018). Noteworthy is to mention that in 2020 the Constitutional reform to article 50 that aims to include the recognition of the human right to water was finally—after 20 years of discussion—approved in the Congress of Costa Rica. This reform came in a crucial moment when the country—as the rest of the world—was dealing with the corona-virus pandemic, which is making the access to safe water even more urgent. The new paragraph of Article 50 reads: ‘Every person has the basic and inalienable human right to access safe drinking water, as an essential good for life… the supply of drinking water for consumption by individuals and populations will have priority’ (Legislative File [Expediente Legislativo] No. 21.382). Table 6.1 summarises the development of surface and groundwater policy and legal frameworks in Costa Rica. It also shows how, in order to regulate and fill the existing legal gaps in the current Water Law, a number of environmental laws and executive decrees deal in one way or another with surface and groundwater resource governance. These include, for example, the Organic Environmental Law, which establishes the character of the public domain of water resources (Organic Environmental Law [Ley Orgánica del Ambiente], 1995, No. 7554, Article 2), the Forestry Law, which establishes protected areas for springs and rivers (Forestry Law [Ley Forestal], 1996, No. 7575, Article 33); and the Wildlife Conservation Law, which recognises the principle of protection of surface and groundwater resources

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Table 6.1 Development of surface and groundwater legal and policy frameworks in Costa Rica Year

Legal framework

1821–1883

There was no formal legislation regarding groundwater resources. The Roman legal tradition recognised groundwater resources as a form of common property

1884

Costa Rica adopted its first Water Law, introducing the concept of water as a public good; however, it only referred to surface water

1942

Costa Rica approved its second (and still in force) Water Law. For the first time, it was established the requirement of licences or permits to use groundwater

1969

Constitutive Law of the Costa Rican Institute for Aqueducts and Sewage (AyA, for its acronym in Spanish)

1973

Groundwater resources were the focus of legislation for the first time, due to their importance for agriculture and irrigation. Act No. 5438 established the National Groundwater Service to better regulate and control the increasing use of groundwater

1976

The first Regulation of the Administrative Committees of Rural Aqueducts was issued (Decree No. 6387-G)

1983

A new government institute, the National Groundwater, Irrigation and Drainage Service (SENARA), was created by Law No. 6877

1992

The Wildlife Conservation Law recognised the principle of protection of surface and groundwater resources

1995

The Organic Environmental Law established the character of the public domain of surface and groundwater resources, as well as the importance of its sustainable use

1996

The Forestry Law established protected areas for springs and rivers

2005

Current Regulation of Administrative Associations of Communal Aqueduct and Sewer Systems (ASADAs). It regulates the operation of the water boards/ASADAs in Costa Rica

2008

The National Water Policy (Política Nacional Hídrica) was developed. It covers mainly aspects regarding water protection

2009

The Strategy for Integrated Water Resources Management (Estrategia para la Gestión Integrada del Recurso Hídrico) was elaborated. It includes considerations mainly regarding different uses of water

2010

The Ordinance for Drilling the Subsurface for the Exploitation and Utilisation of Groundwater was developed. It regulates wells and the procedures to obtain groundwater concessions (permits) from the Water Directorate of MINAE

2013

The 2013–2030 Water Agenda (Agenda del Agua) was developed. It includes different aspects regarding water including use, management and protection

2020

Costa Rica approved the Constitutional Reform to Article 50 that recognises the Human Right to Water

Source Author

(Wildlife Conservation Law [Ley de Conservación de la Vida Silvestre] 1992, No. 7317, Articles 2, 69, 100 and 128).

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6.4 Environmental Annihilation and Inequality Costa Rica’s Caribbean province of Limón has a prominent cultural diversity (e.g., black populations and aboriginals) differing from the rest of the country. Before the region became accessible when the government built a highway in the late 1970s, Limón was physically isolated from the rest of Costa Rica. This has stimulated several positive aspects, such as the vast diversity, however, it has also caused problems related to limited government funding, e.g. for the development of infrastructure and investment in health and education facilitates. This remoteness has facilitated the prominence of industries such as the banana plantations (Harpelle 2000) and more recently the pineapple plantations (Cuadrado-Quesada 2020), as discussed below. The Caribbean slopes have an annual rainfall of over 5000 mm, which makes this zone of the country rich in surface and groundwater resources. Guácimo is a canton in the province of Limón, Costa Rica. The canton covers an area of 576.48 km2 and has a population of approximately 40,500 inhabitants. Its northern border is marked by the Esperanza and Jiménez rivers, which also form the western border. The Destierro River and Parismina River mark the eastern border, and the canton reaches the Cordillera Central Mountain range in the South. Guácimo is subdivided into five districts; each of them has several communities. Although this case study is focused on the canton of Guácimo, some neighbouring cantons, such as Siquirres and Pococí are also discussed, because they are suffering very similar problems. This case study illustrates the concerns relating to the still unachievable principles of equity and sustainability (Fig. 6.1).

6.4.1 Background and Context Costa Rica has become a world’s leading pineapple producer and the world’s number one exporter of that fruit. The main locations where pineapple plantations are located are: the North Zone (mainly the cantons of Upala, Guatuso, and Los Chiles), in the South Zone (largely in the canton of Buenos Aires), and in the Caribbean (predominantly in the cantons of Pococí, Guácimo, and Siquirres). Hundreds of thousands of people live in those communities. Official numbers estimate that approximately 70,000 ha are dedicated to this crop—some argue that this number is much higher—which is exported primarily to the European Union (EU) and the United States of America (USA). Most of the pineapple companies working in Costa Rica are subsidiaries of transnational companies such as Del Monte and Chiquita (Aguirre and Arboleda 2008). According to official estimates, by 2015, Costa Rican exports generated $2453 million (USD), $804.8 million (USD) of them came from pineapple exportation. The boom of the pineapple started first in South Zone of the country, back in late 1970s. Then it expanded to the Caribbean communities in the late 1900s and in the early 2000 to the North Zone of Costa Rica (Aguirre and Arboleda 2008). Many, at

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Fig. 6.1 Map illustrating the case study of Guácimo and main groundwater resources. Source Author

the beginning, were pleased to have the pineapple industry in their communities, as they brought the promise of jobs and a prosperous future. However, soon after they started operations, these ideas changed as the environmental and social problems arose. Currently, the growing expansion of the pineapple monoculture is a major socioenvironmental concern in the entire country. The pineapple industry has managed to continue expanding for the past 20 years (Fig. 6.2). For example, there were approximately 57,327 hectares of the national territory covered by pineapples in 2016. By 2017 there were about 66,266 hectares. Meaning that from 2016 to 2017, the pineapple industry increased the cultivated area by 9,000 hectares, which represents an expansion of 15.7% (Cuadrado-Quesada 2020). Some of the reasons for such expansion is the cheap land and labour available. Even though all these communities were never rich, most people had some land with traditional crops (e.g., beans) (Salazar 2008). Among the main environmental harms caused by this monoculture are: deforestation, erosion, and surface and groundwater pollution due to intensive use of agrochemicals (Cuadrado-Quesada 2020). Regarding social problems the main ones

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Year 2000

Year 2018

Fig. 6.2 Maps showing the pineapple expansion in Costa Rica from 2000 to 2018. Source SNIT 2018

are: loss of land previously in the hands of campesino/campesina and indigenous farmers; devaluation of lands and homes neighbouring pineapple plantations, health problems affecting workers and entire communities such as respiratory problems, allergies and asthma caused by the exposure to agrochemicals (Acuña 2005). Noteworthy is to say that the pineapple plantations almost never appoint local people to run their operations. The jobs that these plantations create have long working hours (12–16), illegal employment contracts, made through individual or companies (contractors) and are no tolerant to unions (Salazar 2008). The interviews conducted in Guácimo revealed that very few people want to live nearby a pineapple plantation due to the treat of environmental damages e.g., deforestation, erosion, intensive use of chemicals. Therefore, as soon as a pineapple plantation starts operating in a given community, the lands near of it lose value and if people have the opportunity to sale (to the pineapple companies) and buy land somewhere else, they do it. The first published study to state that groundwater in the communities of Guácimo was polluted due to the chemicals used in pineapple plantations was released in 2005 (Ruepert et al. 2005). Regarding pollution, it is interesting to mention that on his visit to Costa Rica, in 2013, John H. Knox, the (then) independent expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, warned that Costa Rica must address this harmful level of pesticide use (Knox 2013). The pineapple plantations have expanded to the upper mountainous regions, and have invaded the recharge areas of springs and aquifers. Therefore, while the communities in the Caribbean had sufficient and good-quality water in the past, this situation has drastically changed. These communities have a long history of environmental and social problems due to expansive monocultures. First, at the beginning of the last century, were the banana plantations (Harpelle 2000) and more recently (past 30 years) are the

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pineapple plantations. In response to these situations, the Caribbean communities have created multiple spaces through which they can organise and denounce the environmental and social problems they continuously confront as well as demand government institutions to revert environmental and social violations. The social and environmental problems caused by the pineapple industry are suffered by many other communities also in the North Zone and South Zone of the country. Therefore, a national social movement has been created to try to address these problems at the national level. To provide a better understanding of the current situation and struggle of the communities in Guácimo against the pineapple industry, this chapter includes four stories that involve organisation, the use of the national legal-mix, groundwater pollution and discussions about equity and sustainability. These are as follows: (i) the appeal of an environmental impact assessment, (ii) public hearings established by the municipalities along with pacific demonstrations, (iii) a claim presented to the ombudsman, and (iv) an environmental lawsuit against a pineapple plantation.

6.4.2 Appealing an Environmental Impact Assessment—In Search of Procedural and Representational Justice The first story involves the appealing of an environmental impact assessment, back in 2007, for a new pineapple plantation that intended to be developed in the community of Iroquois, Guácimo, very close to the main aquifers used for drinking water by the community. To try to stop the new plantation—which some community leaders were sure would put groundwater resources at risk due to its location—the community decided to find out whether this pineapple plantation had obtained all the required permits before starting its activity. While looking at that (in various public institutions), they realised that the company had presented an environmental impact assessment which did not comply with all necessary legal requirements, one of them being public participation. The new pineapple plantation needed to conduct public consultations as the project was located on the lands of the community. Articles 22 to 24 of the Organic Environmental Law mandates for public participation and access to information in the process of developing an environmental impact assessment (Organic Environmental Law, No. 7554, 1995). Article 22 states that interested people will have ‘the right to be heard by the National Technical Secretary (SETENA) in any stage of the assessment process…’ (Article 22, Organic Environmental Law, No. 7554, 1995). SETENA is a technical entity of MINAE (discussed in Sect. 6.2), whose main purpose is to oversee environmental impact assessment processes and grant environmental viability to projects. Therefore, some leaders, organised in the environmental association Pro-Defence of the Natural Resources of the Caribbean (Pro-defensa de los Recursos Naturales del Caribe), presented an administrative appeal to SETENA. The community argued that the plantation was violating the right to public participation as established by the Organic Environmental Law, because no one in the communities had heard by

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any means of the development of a new pineapple plantation. Moreover, some of the community leaders realised that the environmental impact assessment presented by the company included many aspects that were not accurate or even false. As stated by a participant, ‘[t]here were a lot of lies in the environmental impact assessment …they said that they had a consultation with the community, but it was a lie… they even said that there are pelicans in this zone, which is, of course, false…’ (Interview Costa Rica No. 5 Community-based organisation, July 14, 2013). In the end, SETENA resolved not to grant environmental approval. Of course, the plantation could have performed a new environmental impact assessment—with all the legal requirements that go with that process—in the hope of obtaining environmental approval. However, it never did. It seems that the company realised that this community was indeed organised, and that if they were to continue with their economic activity they would have to deal with an organised community. Apparently, they did not want to do that. As discussed by a participant, ‘Among our achievements was to show to that pineapple plantation that we are organised and that we do not want more expansive monocultures here…we heard that now, the same company wants to develop a new plantation close by…but in a different community’ (Interview Costa Rica No. 8 Community-based organisation, 15 July 2013). This quote shows how important it is for the communities to know about water/environmental law and its instruments (e.g., appeals) and ways to access government institutions (e.g., SETENA) to demand their rights and avoid further environmental and social annihilation.

6.4.3 People’s Participation in the Politics of the Municipality People from all the communities in Guácimo massively attended the municipal public meetings—inside the building of the municipality but also outside, on the streets. According to article 5 of the Municipal Code, the municipalities have to ‘encourage the active, conscious, and democratic participation of people in the decision-making of the local government’ (Municipal Code, Law No. 7794, 1998). Moreover, the municipality has to organise public sessions to listen to citizen’s concerns. This is established in the Ordinance of Sessions, Agreements, and Commissions of the Municipal Council of Guácimo (Ordinance, Municipal Council of Guácimo 2010). Therefore, the municipalities must facilitate public hearings to discuss relevant issues concerning the development of the canton, and problems experienced, one of them being the uncontrolled growth of pineapple plantations and its impacts in the environment, and in surface and groundwater resources. People attended these public hearings every week for almost a year (2007–2008), as a way to receive information, but also to pressure the municipality and to try to address some existing problems. In these hearings, people argued and pointed out to the municipality that more pineapple plantations will bring nothing to the canton, but more socio-environmental problems and surface and groundwater pollution. Therefore, during these hearings, people were able to pressure the municipality

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into establishing better control and supervision of the pineapple plantations. While some representatives of the communities were inside the municipality, hundreds of people were outside supporting the claims of those negotiating inside. Apparently, the support from the people outside was important enough to pressure the municipality. As one participant affirmed, ‘The municipality felt pressure from the communities…people were angry…we knew that, if we didn’t do anything to control further expansion of the pineapple plantations, we will face a civil unrest…we were actually worried…” (Interview Costa Rica No. 1 Government Agency, 13 July 2013). One of the most outstanding achievements of the attendance to the municipal public meetings (inside and outside) was the establishment of a moratorium on future pineapple plantations. This planning tool is a municipal agreement legally binding for everyone in the canton of Guácimo. The objective of the moratorium was to control the future expansion of pineapple plantations. The moratorium indicated that new pineapple plantations could not be set up in certain areas considered vulnerable, such as the recharge area of aquifers (Act Municipal Council of Guácimo, 2008). With this planning instrument, the municipality developed specific restrictions on the pineapple plantations. More important, the municipality was committed to enforce compliance of the pineapple plantations with this new regulation. The moratorium was established in 2008, with the main objective of protecting vulnerable areas that could be easily polluted by intensive use of agrochemicals if pineapple plantations were set up there. The moratorium was an important planning instrument to try to address some of the main environmental concerns of Guácimo. As argued by an interviewee, ‘[w]e knew we were facing water problems…We felt that the municipality had to do something. People were angry, they wanted actions, and we already knew that many other communities of Siquirres [a neighbouring canton] were having their groundwater polluted by agrochemicals used in pineapple plantations’ (Interview Costa Rica No. 1 Government Agency, 13 July 2013). The role of the municipality (back then) was outstanding; there are many examples (in Costa Rica and elsewhere) of communities being beset by similar problems, but being let down by their local governments, who failed to design and implemented moratoriums or other regulations. Although the moratorium was an essential planning tool for Guácimo, and indeed helped the canton to protect its aquifers, it is no longer in force. The National Chamber of Pineapple Producers and Exporters (CANAPEP, for its acronym in Spanish) successfully presented a legal action (Amparo) against the municipality, arguing that the moratorium was violating their right to free trade and private property. They won the case on 18 October 2013. The Constitutional Tribunal sadly said that ‘…it is a limitation of a fundamental right exercise of freedom of trade and agro-industry…— imposed on through a simple municipal agreement that flagrantly violates the principle of the reservation of law on restrictions on fundamental rights’ (Constitutional Tribunal of Costa Rica, 2013-0013939). Even though the municipality was implementing an important planning tool to avoid further environmental degradation and groundwater resources pollution, the Constitutional Tribunal favoured trade law principles over environmental law principles. As one interviewee commented: ‘Keeping the moratorium was fundamental for the protection of our forests and our aquifers.

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Obviously, the Constitutional Tribunal does not care about the Caribbean communities or water resources. They just care about trade and money’ (Interview Costa Rica No. 10 Community-based organisation, 12 June 2014). Noteworthy is to say that the municipality of Guácimo is well-known for having activist leaders within the ranks of government. These activists/local government officials care about their communities—the place and the people—and their troubles, and seek to provide well-being and a prosperous future to everyone. As an interviewee mentioned ‘for us, an important factor that helped in the municipality’s response was that…she was there… she cares about the community, she is an amazing public officer, we organised our participation in the public hearing with her…’ (Interview Costa Rica No. 11 Community-based organisation 12 June 2014). It seems that having good public officers at the municipality who care about the communities’ problems and people’s concerns, helps considerably to readdress equity and sustainability.

6.4.4 Visiting the Ombudsman—Practising Recognition The third story is the presentation of a claim to the ombudsman as a way to force government institutions to acknowledge the suffering of the people of Guácimo and to address existing environmental, surface, and groundwater concerns. In order to make it, the community leaders of Guácimo received support from various NGOs, and public universities. The communities were convinced that this institution will listen to them and will force other government entities—such as MINAE, MAG, and AyA—to address existing problems. As expressed by an interviewee, ‘[w]e have presented claims in so many different institutions…and no one has done anything for us…it is like if we don’t exist…like no one cares about our problems…perhaps if this situation was going on in a different place in the country the government would have already resolved it…but because it is us no one does anything …’ (Interview Costa Rica No. 3 Communitybased organisation, 13 July 2013). After some of the leaders of the communities presented the claim to the ombudsman, an investigation started. This investigation finally corroborated all the communities’ complaints. Following the inquiry, the ombudsman recommended: ‘to the Ministry of Agriculture and Livestock (MAG), to monitor and ensure compliance…taking corrective measures for management and conservation of soil and water in pineapple areas…; to the Ministry of Environment and Energy (MINAE), to verify that the pineapple farms have relevant permits… and meet all the requirements for their operations…; and finally to the Costa Rican Institute of Aqueducts and Sewage (AyA), to perform analysis of drinking water from the aqueduct of the community of La Perla and the School of Cartagena de Guácimo, in order to verify that they are not contaminated by agrochemicals…’ (Report of the Ombudsman, No. 02730-2007-DHR, 34). This claim to the ombudsman definitely represented an important step towards recognition of these peoples and communities, as finally someone heard them and

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compelled some government agencies to start acknowledging the problems and motivating the design and implementation of legal instruments to regulate and control the pineapple industry in a better way. However, after the intervention of the ombudsman and its recommendations, most of the problems still persist.

6.4.5 An Environmental Lawsuit—Pursuing Sustainability The fourth and final story of the Caribbean communities, includes an environmental lawsuit. Community leaders in Guácimo—such as members of the Pro-Defence of the Natural Resources of the Caribbean Association—presented an environmental lawsuit against a pineapple plantation that was invading protected areas of surface and groundwater resources. The community leaders received support from national NGOs and public universities to present that lawsuit based on the fact that the company—located in the community of La Perla, Guácimo—was invading protected areas of surface and groundwater on their pineapple plantation. The Forestry Law establishes protection areas for surface and groundwater sources. The law states that a surrounding area of 100 m from permanent springs must be protected. The law also states that the land along rivers, creeks, and streams has to be protected to, at least, 15 m in rural areas and 10 m in urban areas, if the area is flat, and to 50 m when it is not. Furthermore, surrounding areas of 50 m from lakes, reservoirs, and aquifer recharge areas shall be protected (Article 33, Forestry Law, No. 7575, 1996). The plaintiffs argued that the pineapple plantation was, among other things, invading the protected areas of the rivers and aquifers. The lawsuit was successful. In 2013, in their verdict, the judges required the plantation to ‘[r]emove the pineapples that were invading the protected areas of the springs’ (Environmental Prosecutor Resolution No. 24536, 2013), which represented almost the entire plantation. Several months after that, the pineapple plantation was mostly closed. As expressed by an interviewee, ‘For us, winning that lawsuit means a lot…it is a motivation to keep fighting against companies that are destroying the environment and violating Costa Rican Environmental Law…’ (Interview Costa Rica No. 13 Communitybased organisation 13 June 2014). It was clear that most people wanted to move towards a different kind of development in the canton—as in the entire Limón province—which clearly did not include destruction of nature, expansive monocultures, intensive use of pesticides, and exploitation of people. As one interviewee pointed out: ‘[t]he only thing that we are demanding to all government institutions is to have sustainable development and sustainable crops and decent jobs… not this kind… of bananas and pineapples plantations…’ (Interview Costa Rica No. 15 Community-based organisation, 14 June 2014). At the time of data collection for this book, the communities in Guácimo continue to instigate administrative and judicial actions against several pineapple plantations and even criminal actions against some of them. However, the outcomes of these other actions will not be discussed in this book.

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6.5 Conclusion The stories of Guácimo, Limón clearly show the multiple concerns regarding equity and sustainability in these communities. Despite the fact that the Caribbean region is rich in water resources, the communities will not have enough water if every drop gets polluted by chemicals used by the agro-industry. It is clear by now that this kind of ‘development’—i.e., expansive monoculture, extensive use of chemicals and exploitation of labour—cause many environmental and social problems. Despite frustration and despair, the communities in Guácimo continue to struggle. They know that they need to keep fighting, because if they do not pressure government agencies—such as the municipality, MINAE, MAG and AyA—to better regulate the pineapple plantations in Guácimo—and elsewhere—the environmental and groundwater annihilation would be even worse. Interesting is to note that those responsible for the water problems were not people from the community; nor was climate change, the fault lied exclusively with legal persons or companies—most of them subsidiaries of transnational corporations— that were pursuing profits, and with some government agencies that were complacent at best. This is link to landowners managing their properties as investments as they are more likely to be interested in short-term profitability (Ross and Martinez-Santos 2010). This explains why for example, in the Angas Bremer case study (Chap. 3), the irrigators were able to address the dilemmas, while in Guácimo the troubles continue to grow. This case study demonstrates (as in Chaps. 3–5) that the existence of chaos/crisis in the shape of groundwater pollution and environmental annihilation can trigger people to participate—in different ways—in the governance of groundwater. In the same manner this case study shows the importance of leadership (e.g., members of environmental organisations) and being small-scale and homogenous communities. Important is to highlight that during the fieldwork, many interviewees from government agencies mentioned that they were aware of the destruction, and were trying to address the situation, and to support the communities; however, it was little what they were able to achieve. This illustrates the limited government support received by the Caribbean communities. An exception of this was the municipality of Guácimo. It also shows how processes of water/environmental change (the new pineapple plantations) are causing a new redistribution of incomes, a few people (owners of the plantations) are becoming richer and richer and the rest are becoming poorer and poorer. It also illustrates how these communities are fighting for cultural justice or recognition and procedural and representational justice. Moreover, this case study illustrates an evident imbalance in power relations. The central government was making decisions about the growth of pineapple plantations without taking into account the concerns of anyone except the pineapple industry. This shows the ‘typical’ structure of power relations, where private corporations have captured and/or manipulated (at best) decision-making processes. This was also evident in the response of the Constitutional Tribunal to the moratorium imposed by the municipality of Guácimo.

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In summary, this case study demonstrates how equity and sustainability continue to be elusive aims for many around the world. However, some limited achievements through using organisation, demonstrations, and water and environmental law were evident. Interesting is to say that visiting public institutions, peaceful demonstration, and presenting environmental lawsuits based on recurring environmental devastation and water pollution have become common practices in these communities. The table below summarises the Case Study of Guácimo (Table 6.2). Table 6.2 Summary/Guácimo, Limón, Costa Rica Summary/Guácimo, Limón, Costa Rica Location: Province of Limón, Costa Rica, Central America

Contextual Factors: • People from Guácimo got motivated to participate in groundwater governance and to seek legal actions to address their problems because they were aware of the groundwater crisis in the neighbouring canton of Siquirres, where pineapple plantations had polluted many drinking water sources • Guácimo has exceptional leaders who motivated everyone in the canton to get involved in groundwater governance and environmental protection presenting complaints, claims, and lawsuits to address surface and groundwater pollution and protect natural resources • Guácimo is a small-scale community, so there was a lot of cohesion • It was an evident imbalance in power relations. The central government was making decisions about the growth of pineapple plantations without taking into account the concerns of anyone except the pineapple industry

Situation: • Costa Rica has become the world’s leading pineapple producer and the world’s number one exporter of that fruit. The boom of the pineapple in the Caribbean communities of Costa Rica started in the late 1900s. At the very beginning, the communities were pleased to receive the pineapple industry, given the promises of jobs and a prosperous future. However, many environmental and social problems arose soon • Pineapple plantations have expanded to the upper mountainous regions, and have invaded recharge areas of springs and aquifers. Thus, while the communities in the Caribbean used to have enough and good-quality water in the past, it has drastically changed • This monoculture causes: deforestation, erosion, and surface and groundwater pollution due to intensive use of agrochemicals • In 2005, was published the first study stating groundwater contamination in these communities due to the chemicals used in agricultural plantations. Since then, the Caribbean communities got organised and have denounced the environmental and social problems they continuously confront in order to drive changes or drive companies away (continued)

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Table 6.2 (continued) Summary/Guácimo, Limón, Costa Rica Results: • The communities realised that a company had presented an EIA that lacked many of the legal requirements to work. They presented an administrative procedure and the environmental approval was denied • People from all the communities in Guácimo massively attended the municipal public meetings back in 2007—inside the building of the municipality but also outside, on the streets—for a year as a way to receive information and pressure the municipality about the existing problems. As a result, a moratorium on future pineapple plantations was established by the municipality. Five years later, the Constitutional Tribunal of Costa Rica decided that it was violating the fundamental right of freedom of trade and suspended it • The community leaders presented a claim to the ombudsman and a research started and corroborated most of the communities’ complaints. The ombudsman ordered investigation and measures to different government agencies in order to ensure that the pineapple farms had relevant permits and meet all the requirements for their operations without polluting water, soils or communities • Many environmental suits have been presented against pineapple plantations invading protected areas • Currently, the communities continue to instigate administrative and judicial actions against several pineapple plantations and even criminal actions against some of them Source Author

Legal Frameworks Costa Rica 1884 Water Law [Ley de Aguas, No. XI], Government of Costa Rica. 1910 Hydraulic Forces Act [Ley de Fuerzas Hidraúlicas, No. 14.], Government of Costa Rica. 1942 Water Law [Ley de Aguas, No. 276], Government of Costa Rica. 1953 General Drinking Water Law [Ley General de Agua Potable, No. 1634], Government of Costa Rica. 1961 Constitutive Law of the Costa Rican Institute of Aqueducts and Sewage [Ley de Creación del Instituto Costarricense de Acueductos y Alcantarillados, No. 2726], Government of Costa Rica. 1995 Organic Environmental Law [Ley Orgánica del Ambiente, No. 7554], Government of Costa Rica. 1996 Forestry Law [Ley Forestal, No. 7575], Government of Costa Rica. 1998 Municipal Code [Código Municipal, No. 7794], Government of Costa Rica.

Interviews Conducted

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Interviews Conducted Costa Rica Interview No. 1 Government agency, 13 July 2013. Interview No. 3 Community-based organisation, 13 July 2013. Interview No. 5 Community-based organisation, July 14, 2013. Interview No. 8 Community-based organisation, 14 July 2013. Interview No. 10 Community-based organisation, 12 June 2014. Interview No. 11 Community-based organisation 12 June 2014. Interview No. 13 Community-based organisation 13 June 2014. Interview No. 15 Community-based organisation, 14 June 2014.

References Acuña G (2005) Los casos de la producción piñera en las regiones Atlántica y Pacífico Sur: Características, organización y condiciones laborales. Aseprola. Costa Rica Aguirre D, Arboleda E (2008) Impacto ambiental del cultivo de piña y características de este (Caso Siquirres). Revista Ambiental Ambientico 177:3–8 Arias M (2011) Gestión del Recurso Hídrico y Uso del Agua. XVII Informe Estado de la Nación en Desarrollo Humano Sostenible. Programa Estado de la Nación Arias M (2012) Vulnerabilidad y Protección del Agua Subterráneas, Valor de la Matriz del Uso del Suelo de SENARA. Revista Ambiental Ambientico 228:9–13 Astorga Y (2013) Gestión del Recurso Hídrico. XIX Informe Estado de la Nación en Desarrollo Humano Sostenible, Programa Estado de la Nación Cuadrado-Quesada G (2020) Realising the human right to water in Costa Rica through social movements. Utrecht Law Rev 16(2):1–14 Cuadrado-Quesada G, Holley C, Gupta J (2018) Groundwater governance in the anthropocene: a close look at Costa Rica. Water Policy 20:1–15 De Albuquerque C (2012) On the Right Track, Good Practices in Realising the Rights to Water and Sanitation (Human Rights to Water and Sanitation, United Nations Special Rapporteur 2012) Harpelle R (2000) Racism and nationalism in the creation of Costa Rica’s Pacific Coast Banana Enclave. The Americas 56(3):29–51. http://www.jstor.org/stable/1007587 Knox JH (2013) United Nations General Assembly, Human Rights Council, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Independent Expert on the Issue of Human Right Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment on His Mission to Costa Rica (28 July – 1 August 2013)’, A/HRC/25/53/Add.1 Ross A, Martinez-Santos P (2010) The challenge of groundwater governance, case studies from Spain and Australia. Reg Environ Change 10(4):299–310 Ruepert C, Castillo LE, Bravo V, Fallas J (2005) Vulnerabilidad de las Aguas Subterráneas a la Contaminación por Plaguicidas en Costa Rica. Instituto Regional de Estudios en Toxicología (IRET), Universidad Nacional (UNA) Salazar O (2008) Plantaciones de Piña en Costa Rica Contra la Sostenibilidad Ecológica y Social. Revista Ambiental Ambientico 177:13–15

Chapter 7

A Sandy-Beach Paradise, Groundwater Exploitation and Groundwater Governance Through Communal Water Boards

When the well is dry, we learn the worth of water Benjamin Franklin

7.1 Introduction This chapter continues with the discussion of groundwater law and governance in Costa Rica. It problematizes the figure of the Administrative Associations of Communal Aqueduct and Sewer (ASADAs for its acronym in Spanish), which are communal water boards. ASADAs serve water to approximately 60% of rural residents, which represent almost 30% of the country’s population. This chapter also discusses the case study of the coastal community of Santa Cruz, Guanacaste, which illustrates a very different scenario (from Chap. 6) of groundwater concerns and engagements, highlighting the problems of overexploitation and salinity. Guanacaste is the driest part of Costa Rica (the opposite to the Caribbean) and it relies almost completely on groundwater for all uses. It is expected that the conditions in this region will get dryer in the near future due to climate change effects. The case study of the coastal communities of Santa Cruz, illustrates the complexities, shortcomings and achievements of ASADAs regarding the pursuing of equity and sustainability. This chapter begins with a discussion of the regulatory aspects of the ASADAs. Subsequently, it analyses how the ASADAs have shaped groundwater law and governance in Costa Rica, particularly in the coastal communities of Santa Cruz, Guanacaste province. The chapter highlights three stories which include diverse regulatory frameworks and groundwater practices to address groundwater equity and sustainability concerns. Some of the questions that this chapter explores include: What motivates people to get involved in groundwater governance? What are common groundwater practices when there is a problem of overexploitation? How can people organise themselves to address groundwater troubles? What has been the

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_7

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role of law in addressing pressing concerns? To what extent government institutions have been involved in addressing groundwater problems?

7.2 ASADAs or Communal Water Boards in Costa Rica The communal water boards in Costa Rica are commonly known as ASADAs. This figure has its legal birth in the Constitutive Law of the Costa Rican Institute for Aqueducts and Sewer (Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados [Constitute Law of AyA, for its acronym in Spanish], No. 2726, 1961), which is the national institution responsible for water and sanitation provision in Costa Rica (as mentioned in Chap. 6). According to official estimates, approximately 96% of the population in Costa Rica has access to water; and around 76.6% has access to collection and disposal of sewage, mainly through septic tanks (Herrera-Murillo 2017). Article 2.g of the Constitutive Law of AyA establishes that AyA ‘[m]ay agree with local agencies, the administration of water services or manage them through administrative boards of mixed integration between the institute and the respective communities, whenever this is convenient for a better delivery of services and in accordance with the respective regulations’ (Art 2.g, Constitutive Law of AyA, No. 2726, 1961). Even though the legal birth of the ASADAs is found in the Constitutive Law of AyA, these communal association came into being back in the 1950s, as a consequence of the lack of government capacity to provide water to many rural communities (FANCA 2006). The ASADAs are regulated by the Regulation of Administrative Associations of Communal Aqueduct and Sewer Systems (ASADAs Regulation, 2005) and the Law of Associations (Associations Law, No. 218, 1939), which gives ASADAs the status of independent associations. Normally, ASADAs are integrated by members of a community interested in participating in water issues. Then, the founders elect a five-to-six-person executive board every two years, at the biennial community assembly. In order to become a new associate, a person only needs to be a water user, be fully up to date with payment of water bills, and send a written notification to the executive board expressing the interest of becoming an associate. The executive board meets at least once a month to oversee the ASADA operation. The members work pro bono and often ASADAs can only afford to pay up to two employees, who generally are a plumber and a secretary (Dobbin and Sarathy 2015). The main economic resources the ASADAs can count on is the water tariff1 paid by the users. Because the ASADAs manage a public service and operate with public funds, they are subject to certain restrictions that do not exist for other associations. For example, if it is verified that an ASADA is not efficient in providing a public service, AyA could take over the administration of its water and sewer The water tariff of the ASADAs tends to be very low. Some of them charge ₡3000 colones (about 4 euros) per month. They use most of the money for infrastructure.

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systems. Moreover, AyA has established legal mechanisms to compel the ASADAs to comply with their regulations. For example, water concessions may not be solicited directly from the MINAE; applications must be presented through the AyA. Even for their inscription in the public Registry of Associations, the AyA’s approval is required, although this, according to some scholars, is unconstitutional (FANCA 2006; Cuadrado-Quesada et al. 2018). ASADAs started out as informal water providers in small and rural communities in Costa Rica, where the government was not able to fulfil its responsibility to provide water to everyone. Thus, in the beginning, these associations were rudimentary. However, this has considerably changed over time, and currently many ASADAs are engaged in river basin management, recharge zones monitoring, spring protection, sewage collection and much more (Monge et al. 2013; Cuadrado-Quesada 2021). Current ASADAs’ regulations, policies and statutes incorporate a broad range of resolutions related to the protection of water resources and their ecosystems, directing economic resources to these systems whose importance may surpass that of ‘traditional’ tasks (Dobbin and Sarathy 2015). Some ASADAs in Costa Rica, for example, receive payments for environmental services because they are protecting the land (e.g., reforesting) that covers their springs. This is an incentive offered by MINAE to ASADAs, farmers or landowners in exchange for protecting their land, and to provide environmental services like water protection. Moreover, ASADAs’ regulations include several environmental and water protection clauses, such as requirements for the monitoring and control of potentially harmful activities in the recharge zones, forest-fire prevention, and the delimitation of protected areas (Monge et al. 2013). As a result, in many rural communities, the ASADAs are at the vanguard of surface and groundwater governance, protecting its sources and exercising sustainable use of the resource. Currently, there are approximately 1500 ASADAs (including Rural Water Committees (CAARs, for its acronym in Spanish))2 responsible for governing surface and groundwater in their communities. These associations serve water to roughly 60% of rural residents, totalling nearly 30% of the country’s population, and represent an increase in national access to improved water sources of 28% from 1980 to 2012 (Dobbin and Sarathy 2015). Despite the apparent success of the ASADAs, they also face numerous shortcomings and challenges. Some of these are discussed below.

2

This is the legal figure that existed before the ASADAs. Most of the CAARs have been transformed to ASADAs.

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7.3 Groundwater Exploitation, Unplanned Tourism and Associated Real Estate in a Vulnerable Coastal Paradise 7.3.1 Location and Importance Even though Costa Rica is a tropical country and many areas have significant rainfall (e.g., the Caribbean), other areas, such as these coastal communities in Santa Cruz, Guanacaste, have not. The average rainfall during the rainy season in the North Pacific is between 1500 and 2000 mm; nevertheless, during the dry season it decreases considerably and can drop to 417 mm (Mora-Alvarado et al. 2012). The average rainfall during the dry season is similar to that experienced in the two Australian case studies. Therefore, there is heavy reliance on groundwater in this region, approximately 88% of the water used comes from groundwater (Global Water Partnership (GWP) Central America 2011). The main aquifers of the coastal communities of Santa Cruz, Guanacaste are shown in Fig. 7.1. The coastal communities of the Santa Cruz canton studied in this case study include the coastal communities of Flaming, Potrero, Brasilito, Tamarindo, and Playa Grande, as well as the neighbouring communities of Huacas, Lorena, and Villarreal. In this area, land use and forest cover in coastal micro-river basins do not help promote good conditions for aquifer recharge, because half of the year most the creeks are dry (SENARA 2015). These communities expect to get drier in the future, which could severely affect this resource (Kuzdas et al. 2014). Groundwater quantity problems in this area are caused mainly by lack of surface water, especially during the dry season (December to May); however, other factors intensify these challenges, such as the accelerated growth in tourism and real estate, and poor control mechanisms of the government to regulate such activities (Cuadrado-Quesada et al. 2018). The coastal aquifers of the abovementioned communities are being used for many different uses including tourism, agriculture, irrigation and to meet the needs of the local population. The hydrodynamic characteristic of these areas are not well known, however many keep pumping water from these aquifers as demand continue to increase (Garcia and Arellano 2011). This has caused saline intrusion in some of these aquifers. The case study of the coastal communities of Santa Cruz, Guanacaste, offers an example of communal governance of groundwater resources and illustrates the major concerns posed by inequity, unsustainable use of water resources, salinity, unplanned growth of tourism, and real estate, fragmented and outdated legislation, and weak enforcement. ASADAs, are major actors in the governance of surface and groundwater in these communities and in many others in Costa Rica, therefore they deserve special attention in this book, in order to analyse their influence, potential, and future role. Noteworthy is to mention that similar figures are functioning also in many countries in Latin America, facing similar challenges and opportunities as these in Costa Rica (FANCA 2006).

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Fig. 7.1 Map illustrating the case study of coastal communities of Santa Cruz, and the main groundwater resources. Source Author

7.3.2 Background and Context The coastal communities of Santa Cruz are a paradise with beautiful white sand beaches and dry tropical forest, which makes them a popular destination for national and international tourism. Due to these conditions, in recent decades the area has seen a rapid and widespread growth in tourism and associated real estate development. However, to date this growth has emerged in the absence of an integrated sustainability plan; authorities have not taken into account the vulnerability of the area due to, for example, water scarcity, and climate change conditions such as longer dry seasons and shorter rain seasons (Kuzdas et al. 2016). The growth of the area has been mostly focused on building massive tourist infrastructure, much of which requires significant water use as is the case with golf courses and swimming pools. There is also a significant volume of water being used for agriculture, which is in fact the main water use in the entire Guanacaste province (Kaune et al. 2018). However, this chapter does not address agriculture/irrigation in detail.

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Since the boom in tourism and real estate started, back in the 1990s, problems of water availability, shortages, and salinity have resulted in the coastal communities of Santa Cruz, becoming ever more vigilant in ascertaining who uses groundwater, what for and how much. This boom of tourism has not been accompanied by the development of water infrastructure. Since the year 2000 there have been many water/environmental conflicts in these communities, mainly between the communities and the tourism industry (Cuadrado-Quesada 2017). In this, ASADAs have played a major role, demanding of several government institutions to address the problems created by water overexploitation. ASADAs have, in some cases, denied access to water to new developments (e.g., hotels) when they have feared that groundwater resources could be at risk of saline intrusion (Cuadrado-Quesada et al. 2018). In addition, they have developed innovative mechanisms to foster community participation in surface and groundwater governance (Cuadrado-Quesada and Gupta 2019). After this background and context, current concerns of ASADAs in the coastal communities of Santa Cruz, Guanacaste will be discussed. It is important to note that the situation of ASADAs in these communities mirror the situation of ASADAs in the entire country. Three stories are told in the next subsections, which include the use of groundwater law and different practices of the ASADAs in governing groundwater. These are as follows: (i) pursuing equity through participation in decision-making; (ii) monitoring aquifers to protect groundwater and; (iii) the creation of protection areas to promote sustainability in the coastal area.

7.3.3 ASADAs—A Prominent Participatory Mechanism to Pursue Equity To what extent are ASADAs contributing to the promotion of equity in the coastal communities of Santa Cruz, Guanacaste? And, how ASADAs encourage equity through participation in decision-making in their communities? Some scholars and practitioners have described ASADAs as the most participative mechanism in surface and groundwater governance in Costa Rica (FANCA 2006; Monge et al. 2013; Cuadrado-Quesada 2021); not only because they represent examples of selfgovernance, but also because they are committed to promote communities’ participation in political affairs. This first story of this case study provides some answers to the previous posted questions, while at the same time offers insights into the major problems faced by ASADAs in the coastal communities of Santa Cruz, Guanacaste. As revealed by the interviews conducted in the coastal communities of Santa Cruz, ASADAs have provided interested people with relevant information about groundwater issues and fostered participation in decision-making. ASADAs hold a public meeting at least twice a year; however, when pressing issues emerge, they hold several extraordinary meetings. In both kinds of meetings, ASADAs present significant information about groundwater resources, particularly regarding the main problems affecting them (e.g., over-exploitation and salinity). Additionally, ASADAs

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discuss with the community what to do with the problems and how to resolve them. Everyone has the opportunity to present their concerns and doubts, and decisions are mostly taking by consensus. As pointed out by one participant: ‘In this community it has been good…in our meetings we get access to information about water issues and participate in decision-making when something needs to be done…for example, regarding water systems…the maintenance of the water systems…and buying land to protect the aquifers…’ (Interview Costa Rica No. 17 Community-based organisation, 20 July 2014). As in the Angas Bremer and Guácimo case studies, an imperative factor that encouraged people from the coastal communities of Santa Cruz to participate in groundwater governance within the ASADAs, through attending meetings and expressing their opinions and concerns, was acknowledging that they were suffering a groundwater crisis and displaying willingness to engage with it (Gleick 1998). Currently, these communities experience serious problems regarding groundwater quantity and quality (due to saline intrusion). During the dry season the quantity problem increases due to the lack of rainfall. Furthermore, these communities face the problem of the poor infrastructure. As argued by an interviewee: ‘We are facing water shortage…sometimes we open the tap and we do not get any water…that happens often during the dry season…sometimes we just have water very early in the morning and very late at night…but the golf courses are always green…’ (Interview Costa Rica No. 18 Community-based organisation, 20 July 2014). This quote shows that although water scarcity (absolute availability) is a problem, the main issue is inequity in access and distribution (Zwarteveen et al. 2017), and it raises the questions of who can build infrastructure to access groundwater? how much do they use, and for what purposes? As was found in the Angas Bremer and Guácimo case studies, in the coastal communities of Santa Cruz many people decided to participate in groundwater governance because they realised there were many socio-environmental problems. As argued by a participant: ‘We, the ASADAs, have informed people that there are a lot of problems regarding water in these communities, at the beginning it was hard…many people did not care about it…but now…because of so many problems, maybe…that indifference is changing…more people are getting involved in water issues’ (Interview Costa Rica No. 21, ASADAs, 30 June 2014). Once again, it seems that some people need to experience problems, crisis or chaos to participate in water issues. Another crucial factor that has facilitated procedural and representational justice and has try to address inequity concerns in this case study is a proactive community leadership. The coastal communities have charismatic leaders who have convinced many people to participate in groundwater governance. The main leaders of the coastal communities have been the members of the executive boards of ASADAs. These leaders have met with people from the communities to explain the importance of surface and groundwater resources, their reliance on groundwater, distribution problems (e.g., the fact that the hotels have the golf courts very green while the communities do not have enough water to drink), and how they can all work together to find possible ways to address these pressing concerns.

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It is relevant in the context of this case study to explain in more detail the role of AyA. According to article 36.7, of the ASADAs Regulation, ‘AyA must train the ASADAs in technical, legal and administrative aspects of water’. However, it seems that so far, the overall training provided to the ASADAs by AyA has been quite limited. The interviewers reveal that most ASADAs have not received the technical, administrative, and legal support they require from the AyA. As argued by one participant: ‘Here we have said to AyA, if AyA is supposed to be the mother of ASADAs, we are orphans… AyA does not provide us with any support… they never give us training in any topic… we do everything by ourselves… even worse, we feel that they just want to make us disappear…’ (Interview Costa Rica No. 22, ASADAs, 30 June 2014). This clearly affects the overall performance of ASADAs, mainly because the lack of technical information diminishes their capacity to plan for the future based on accurate information about surface and groundwater resources (e.g., quantity, quality and recharge capacity). If ASADAs do not have that kind of scientific information, it becomes more difficult to plan use, allocation and distribution. As was the case for the communities in Guácimo and in Angas Bremer, a factor that has enabled procedural and representational justice and the pursue of equity in this case study is that the communities are small-scale and homogenous. The total population in these coastal communities is around 35,000 inhabitants. As argued by a participant: ‘The communities here are really small; we all know each other. Even though due to tourism and real estate the place is growing, most of them do not live here… even the ones who have a house… they just come for holidays… but we are always here… and we care about the communities, the natural resources, the water… and we all want to protect our natural resources’ (Interview Costa Rica No. 23, ASADAs, 30 June 2014). It seems that this factor has also helped the coastal communities to work together with ASADAs and to develop a sense of ownership and care that motivates people to get involved and participate in groundwater governance. As in the case study of Guácimo, the coastal communities of Santa Cruz shows how processes of water/environmental change (the new hotels and real estate developments) are causing a new redistribution of incomes, and reallocation of water resources, where it is evident that a few people (owners of the hotels and real estates) are becoming richer and getting more water; while the rest of the people are becoming poorer and receiving less water. It also illustrates how these communities are fighting for procedural and representational justice through the ASADAs. It is also relevant to address power relations in this context. It seems that for many actors—such as households, small businesses and other water users—it has been easier to participate through community-based organisations like ASADAs rather than through government institutions. This easier accessibility has given ASADAs a structure that allows a more equitable balance of power among them and other community actors. However, it continues to exist a huge power imbalance between the private sector i.e., hotels and real estate developers and the government in one hand; and the communities and ASADAs in the other hand. ASADAs in the coastal communities of Santa Cruz are affected by the limitations of voluntarism. This is especially a problem of time and money for the members of the ASADAs who work pro bono (as explained in Sect. 7.2). One participant

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argued as follows: ‘Even though we love to work for the ASADA, sometimes we get really frustrated because there is always a lack of money to do things…and we never receive proper training…’ (Interview Costa Rica No. 24, ASADAs, 30 June 2014). This quote shows some consequences of not getting enough support, training, and funding from government institutions. Therefore, even though ASADAs are a good example of a participative mechanism in the groundwater governance context, it is hard to assess their full potential when proper training and funding are not provided. This discussion highlights that even though ASADAs are poorly funded and trained they have accomplished a lot. Thus, the question of what they could achieve when properly funded and trained arises? Reflecting on the Angas Bremer case study, where government institutions work together with the community—providing science and making users understand how groundwater works—we can only assume that the situation with ASADAs would be even more fruitful. Therefore, this case also shows the importance of having government agencies as key actors in groundwater governance, and the detriment that results when this party is not fulfilling its obligations. To summarise, ASADAs have provided an alternative way to shape participative groundwater governance in the coastal communities of Santa Cruz. ASADAs have also provided access to information about groundwater resources and political issues; and have fostered procedural and representational justice within their communities. However, this has not resulted in alleviating the overall inequity in these coastal communities as a few powerful actors continue to accumulate incomes, and natural resources including groundwater.

7.3.4 Monitoring of Aquifers—A Practice of ASADAs to Promote Sustainable Use According to Article 58 of the Biodiversity Law, mangroves are protected areas which must be conserved (Biodiversity Law, No 7788, 1998). It is also prohibited to change land use in forests according to Article 19 of the Forestry Law (Forestry Law, No 7575, 1996); however, these legal frameworks seem to be violated. In the words of an interviewee: ‘We are worried because we feel that government institutions, here in Santa Cruz…are incompetent…they do not implement proper controls…we see a lot of lack of enforcement of environmental laws in this area…’ (Interview Costa Rica No. 25, ASADAs, 1 July 2014). Moreover, the interviews conducted suggest that tourist development in these coastal communities is not done following any overarching sustainable policy or strategy—even though these policies and strategies exist. Many of the interviewees confirm that they often see hotels and real estate built where there used to be a mangrove, or in the middle of the forest. And this is easily confirmed just travelling through the region. In fact, the same representatives of government institutions admitted the numerous gaps in enforcing environmental and (ground)water law. As expressed by a government interviewee: ‘There is a lot of non-enforcement here… for example, we cannot

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supervise and control that everyone is using only the amount of groundwater that it is established in their water concessions… we know some of the big hotels are using much more water than what it is established in their concessions … but we do not have enough personnel to deal with the situation …’ (Interview Costa Rica No. 26, Government agency, 1 July 2014). Interesting is to note that, all government interviewees mentioned a lack of staff and funding in government institutions. It seems that in the absence of sufficient institutional funding, it is hard to enforce environmental and (ground)water law or even to threaten to enforce them. In such circumstances, protecting surface and groundwater and achieving a goal like sustainability becomes very challenging. Despite the difficulties in protecting groundwater and promoting its sustainable use, the interviews conducted suggest that some important efforts are being made. For example, some ASADAs (e.g., Tamarindo and Huacas) have received support from the National Service of Groundwater, Irrigation and Drainage (SENARA discussed in Sect. 6.3) to carry out groundwater monitoring. Monitoring in this region remains limited; however, it has been used to provide basic information about quantity (e.g., how much water is there) and quality (presence of saline intrusion). More robust and regular monitoring is needed to understand how groundwater works and the accumulative impacts of overuse and contamination, or guide the overall governance of groundwater as, for example, in Angas Bremer (Chap. 3). In accordance with the ASADAs Regulation, they are ‘responsible for promoting sustainable use of water resources, for the preservation and conservation of water resources’ (Article 21.3, ASADAs Regulation, 2005), and they have ‘an important role in enhancing sustainable use of water resources’ (Article 46, ASADAs Regulation, 2005). Moreover, the ASADAs Regulation establishes that they are responsible for authorising new water connections, and reconnections (Article 46, ASADAs Regulation, 2005). Therefore, ASADAs can deny new connections if they know that groundwater resources are being used beyond their sustainable limits. As one interviewee commented: ‘Here in ASADA of Tamarindo, we have said, we can’t give you a water connection because there is no more water…the monitoring of our aquifers show that we can’t use more water…we are committed not to push the water beyond its recharge limits…’ (Interview Costa Rica No. 27, ASADAs, 1 July 2014). Despite the positive results accomplished by ASADAs in the coastal communities, they are not properly funded by the government. This is especially true when it comes to AyA, because according to the ASADAs Regulation AyA has to ‘advice and support the ASADAs in technical, management and legal issues’ (Article 38.4, ASADAs Regulation, 2005), moreover AyA is responsible of ‘training and capacity building of all the members of the ASADAs…’ (Article 38.7, ASADAs Regulation, 2005). The fact is that the support hardly arrives. As mentioned by a participant: ‘The AyA hardly ever provides us with training and capacity building…it seems that they have forgotten all the positive things that we provide to our communities…’ (Interview Costa Rica No. 28, ASADAs, 1 July 2014).

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7.3.5 The Creation of Protection Areas—Another Practice of ASADAs ASADAs have also established protection zones for their surface and groundwater sources. The ASADAs Regulation, states that these associations must ask the AyA to supply the delimitation of the protection zones of their water catchments, with the aim of purchasing them in order to protect water resources and guarantee their sustainability (Article 48, ASADAs, Regulation, 2005). Some ASADAs have first purchased those lands and then implemented reforestation activities e.g., planting native trees. As expressed by a participant: ‘We have bought a few hectares around our water catchment in order to protect that area, so nobody can come and buy it later and put at risk our water…after we buy the land we start with reforestation campaigns … currently we are doing it in the community of El Llanito…and some organisations are donating native trees, such as Coopeguanacaste’ (Interview Costa Rica No. 30, ASADAs, 2 July 2014). Implementing monitoring to know how much water is in the aquifer and what is the quality of the water facilitated the decision about buying strategic lands. This practice of buying lands and creating protected areas to guarantee water protection gives the impression that ASADAs are trying to promote water conservation and overall sustainability in these coastal communities. As one interviewee shared: ‘I think some ASADAs… are implementing various tools such as monitoring and buying strategic areas… because we care about water sustainability… we want to guarantee water to our children and our children’s children…’ (Interview Costa Rica No. 31, Community-based organisation, 2 July 2014). As in Angas Bremer, Delft and Guácimo, an imperative factor forced people from the ASADAs to engage in monitoring, buying land, and creating protection areas: acknowledging that they were suffering a groundwater crisis/problem and displaying a willingness to engage with it. As highlighted by a participant: ‘We realised that we needed to buy those lands, because if we did not, someone else will do it in the future…and that will put at risk our aquifers…and here we are already having so many water problems…we need to think ahead and plan ahead to avoid further problems’ (Interview Costa Rica No. 32, ASADAs, 2 July 2014).Acknowledgement of the groundwater crisis and being small-scale communities facilitated dialogue, awareness as well as the raise of leaders, such as executive board members of ASADAs, who got more vigilant and proactive. They have been instrumental in providing an alternative way to safeguard groundwater resources and to promote overall sustainability in the coastal communities of Santa Cruz.

7.4 Conclusion This chapter reflected on the significant, however poorly studied figure of ASADAs (Cuadrado-Quesada 2021). It particularly analysed groundwater law, governance and different practices used by ASADAs in the coastal communities of Santa Cruz,

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Guanacaste, to address the problems of overexploitation, saline intrusion, and environmental degradation. It demonstrated that such water and environmental problems can motivate people to get involved in groundwater governance and use groundwater law. One clear example of that was the participation of most people of the coastal communities in the meetings of the ASADAs, asking for information about groundwater and pressing problems and seeking to have political participation in decision-making. Groundwater crisis can make people to turn to organisations trying to get involved in addressing pressing concerns. Furthermore, these communities were aware of many of the existing problems, meaning people trying to protect their natural resources, especially water, through existing communal organisations. The findings of the coastal communities’ case study demonstrate that when disruptive situations occur, people tend to come together and alter and improve the normality. The situation of groundwater stress in these communities has made people rethink what kind of development they want, and it seems quite different to the current roadmap. The communal figure of the ASADA has noticeably shaped groundwater law and governance in the coastal communities, creating a space for political participation. The findings of this case study also demonstrate, that even with hardly any funding/support/training from government institutions, if there are local organisations in place and law and regulations that give some powers to such organisations e.g., ‘authorising new water connections, and reconnections’ (Article 46, ASADAs Regulation, 2005) and ‘responsible for… preservation and conservation of water resources’ (Article 21.3, ASADAs Regulation, 2005), they will create practices, mechanisms and tools to protect water and prevent environmental annihilation. It is critical to say that, in this case study—as in Guácimo—there was a clear imbalance in power relations between different actors. The government was making decisions about the development of the coastal area—mainly focused of growth of tourism and associated real estate—without including the interests and concerns of local communities, small-businesses, community-based organisations, environmental organisations and ASADAs. Therefore, this case illustrates, once more, the idea of business-as-usual and conventional structure of power relations, where private actors have influenced and/or manipulated the government, to decide what and how the development of communities should be. To summarise, this case study demonstrated a lack of enforcement of environmental and water law in the overall coastal area of Santa Cruz, Guanacaste. There is still a lot of work to do, especially regarding responsibilities of government institutions to actually protect vulnerable spaces—such as mangroves, beaches, and forests. It is interesting to reflect on how ASADAs represent an alternative to enforcement. As communities become more aware, organised and vigilant, less enforcement is needed.

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A final critical remark is the need of having the government and its institutions— at the central and local levels—working together to support, train and fund ASADAs of the coastal communities of Santa Cruz. Nevertheless, and with the discussed limitations, it is important to acknowledge the significant efforts made by these ASADAs (and others around the country) in order to promote equity, protect water and promote sustainability. The table below summarises the Case Study of the coastal communities of Santa Cruz (Table 7.1). Table 7.1 Summary/Coastal communities of Santa Cruz, Guanacaste, Costa Rica Summary/Coastal communities of Santa Cruz, Guanacaste, Costa Rica Location: Province of Guanacaste, Costa Rica, Central America

Contextual factors: • ASADAs or communal water boards came into being back in the 1950s as a consequence of the lack of government capacity to provide water to many rural communities • ASADAs started out as water providers in small and rural communities in Costa Rica. Thus, in the beginning, were rudimentary. However, currently in many rural and peri-urban communities, ASADAs are at the vanguard of surface and groundwater governance, protecting its water sources and exercising sustainable use of the resource • The coastal communities have charismatic leaders who have convinced almost everyone to participate in groundwater governance • Despite the positive results accomplished by many ASADAs, they are not properly funded/trained by the government

Situation: • The coastal communities in Santa Cruz, Guanacaste, (Flaming, Potrero, Brasilito, Tamarindo, and Playa Grande, as well as the neighbouring communities of Huacas, Lorena, and Villarreal) have an average rainfall during the rainy season between 1500 and 2000 mm; nevertheless, during the dry season it can drop to 417 mm. There is heavy reliance on groundwater in this region, which is expected to grow in the near future • The coastal communities of Santa Cruz are a paradise with beautiful white sand beaches and dry tropical forest, which makes them a popular destination for tourism. In recent decades the area has had a rapid and widespread growth in tourism and associated real estate development. However, this growth has emerged in the absence of an integrated sustainability plan and it has been mostly focused on building massive tourist infrastructure, much of which requires significant water use, as is the case with golf courses • The coastal communities of Santa Cruz are concerned about water depletion, salinity, unplanned growth in tourism and real estate, fragmented and outdated legislation, and weak institutional enforcement (continued)

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Table 7.1 (continued) Results: • Since the boom in tourism and real estate started, in the 1990s, problems of water availability, shortages, and salinity increased in the communities of Santa Cruz, becoming ever more vigilant in ascertaining who uses groundwater, what for and how much • ASADAs have played a major role demanding to several government institutions to address the problems created by overexploitation • ASADAs have, in some cases, denied water permits to new developments when they have feared that groundwater resources could be at risk of saline intrusion • ASADAs have developed innovative mechanisms to foster community participation and have implemented tools in order to promote sustainability, such as creating protection areas for the aquifers used to supply water to their communities • The situation of water stress in these communities in Santa Cruz has made people rethink what kind of development they want, and it seems quite different to the current roadmap • The communal figure of the ASADAs has noticeably shaped groundwater governance in the coastal communities, creating a space for participation and decision-making Source Author

Legal Frameworks Costa Rica 1939 Associations Law [Ley de Asociaciones, No. 218], Government of Costa Rica. 1961 Constitutive Law of the Costa Rican Institute of Aqueducts and Sewage [Ley de Creación del Instituto Costarricense de Acueductos y Alcantarillados, No. 2726], Government of Costa Rica. 1995 Organic Environmental Law [Ley Orgánica del Ambiente, No. 7554], Government of Costa Rica. 1996, Forestry Law [Ley Forestal No 7575], Government of Costa Rica. 1998, Biodiversity Law [Ley de Biodiversidad, 7788], Government of Costa Rica. 2005 Regulation of the Communal Water Associations [Reglamento de las Asociaciones Administradoras de Acueductos y Alcantarillados Comunales] Executive Decree No. 32529-S-MINAE 2005], Government of Costa Rica.

Interviews Conducted Costa Rica Interview No. 17 Community-based organisation, 20 June 2014. Interview No. 18 Community-based organisation, 20 July 2014. Interview No. 21, ASADAs, 30 June 2014. Interview No. 22, ASADAs, 30 June 2014. Interview No. 23, ASADAs, 30 June 2014.

Interviews Conducted

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Interview No. 24, ASADAs, 30 June 2014. Interview No. 25, ASADAs, 1 July 2014. Interview No. 26, Government agency, 1 July 2014. Interview No. 27, ASADAs, 1 July 2014. Interview No. 28, ASADAs, 1 July 2014. Interview No. 30, ASADAs, 2 July 2014. Interview No. 31, Community-based organisation, 2 July 2014. Interview No. 32, ASADAs, 2 July 2014.

References Cuadrado-Quesada G (2017) Gobernanza de las aguas subterráneas, conflictos socio-ambientales y alternativas: experiencias de Costa Rica. Anuario de Estudios Centroamericanos 43(1):393–418 Cuadrado-Quesada G (2021) Las ASADAs: un analisis juridico-practico de su naturaleza y sus responsabilidades. Revista IUS Doctrina, 14 (1) Cuadrado-Quesada G, Gupta J (2019) Participation in groundwater governance: outlining a path to inclusive development. Water Policy 21(5):1050–1064 Cuadrado-Quesada G, Holley C, Gupta J (2018) Groundwater governance in the anthropocene: a close look at Costa Rica. Water Policy 20:1–15 Dobbin K, Sarathy B (2015) Solving rural water exclusion, challenges and limits to co-management in Costa Rica. Soc Nat Resour 28(4):388–404 Fresh Action Network—Central America (FANCA) (2006) Water boards in Central America, assessment of local management of water resources, a comparative study (FANCA) Garcia MA, Arellano F (2011) Modelo Hidrogeologico conceptual del acuifero Nimboyores, Guanacaste, Costa Rica Global Water Partnership (GWP) Central America (CA) (2011) Situación de los Recursos Hídricos en Centroamérica: Hacia una Gestión Integrada. GWP Central America Gleick P (1998) Water in crisis, path to sustainable water use. Ecol Appl 8(3):571–579 Herrera-Murillo J (2017) Uso y estado de los recursos hídricos. Informe Estado de la Nación en Desarrollo Humano Sostenible. Programa Estado de la Nación Kaune A, Werner M, López P, Rodríguez E, Karimi P, Fraiture C (2018) Can global precipitation datasets benefit the estimation of the area to be cropped in irrigated agriculture? Hydrol Earth Syst Sci Discuss:1–35 Kuzdas C, Wiek A, Warner B, Vignola R, Morataya R (2014) Sustainability appraisal of water governance regimes: the case of Guanacaste, Costa Rica. Environ Manage 54(2):205–222 Kuzdas C, Warner B, Wiek A, Vignola R, Yglesias M, Childers D (2016) Sustainability assessment of water governance alternatives: the case of Guanacaste Costa Rica. Sustain Sci 11(2):231–247 Monge E, Paz L, Ovares C (2013) Transparencia y Rendición de Cuentas en las ASADAS, Manual para las Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Sanitarios (ASADAS) de Costa Rica. Centro de Derecho Ambiental y de los Recursos Naturales (CEDARENA) Mora-Alvarado D, Mata A, Felipe-Portuguéz C (2012) Agua para Consumo Humano y Saneamiento: Situación de Costa Rica en el Contexto de las Américas 1961–2011. Instituto Costarricense de Acueductos y Alcantarillados, Laboratorio Nacional de Aguas

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Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) (2015) Evaluación del Potencial y Demanda Hídrica Subterránea en el Acuífero Costero Huacas—Tamarindo, Santa Cruz, Guanacaste, Costa Rica Zwarteveen M, Kemerink-Seyoum J, Kooy M, Evers J, Acevedo-Guerrero T, Batubara B, Biza A, Boakye-Ansah A, Faber S, Cabrera-Flamini A, Cuadrado-Quesada G, Fantini E, Gupta J, Hasan S, ter Horst R, Jamali H, Jaspers F, Obani P, Schwartz K, Shubber Z, Smit H, Torio P, Tutusaus M, Wesselink A (2017) Engaging with the politics of water governance. Wiley Interdiscip Rev (WIREs) Water 4:1–9

Chapter 8

Groundwater, Bans on Free Grazing, Tree Felling and Drilling Wells

…[t]he depressed classes may not be able to overthrow inequities to which they are subjected. But they have made up their mind not to tolerate a religion that will lend its support to the continuance of these inequities… BR Ambedkar, Annihilation of Caste

8.1 Introduction This chapter brings India to the discussion. India is the largest groundwater user in the world through the construction of millions of collective and private wells. The factors driving this expansion include poor public irrigation and drinking water delivery, new pump technologies, the flexibility and timeliness of groundwater supply, and government electricity subsidies. As a result of these circumstances, India faces immeasurable groundwater problems such as overexploitation and pollution. These problems are beautifully illustrated with the case study of Hivre Bazar, a rural community in the state of Maharashtra in Ahmednagar’s district, in the west of the country. This community—as many other rural communities in India—has suffered vast environmental and social problems (Joy et al. 2014); the situation became particularly unbearable in the late 1970s, when many people were forced to migrate searching for opportunities to make a living. However, this situation has changed in the last three decades. The first section of this chapter sets the scene for groundwater law and governance in India. Then, the groundwater legal, policy and institutional frameworks of India, with a focus on Maharashtra are discussed. Subsequently, an analysis of groundwater practices, law and governance in the community of Hivre Bazar is presented. The chapter’s discussion focusses on three diverse stories of Hivre Bazar related to groundwater practices to address groundwater equity and sustainability concerns. Some of the questions that this chapter addresses include: What motivates people to get involved in groundwater issues? What are common groundwater practices? How does governance of groundwater involved? How can people organise themselves to address groundwater troubles? What has been the role of law in addressing © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_8

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groundwater issues? What have been the role of government institutions in addressing groundwater problems?

8.2 India—Setting the Scene for Groundwater Law and Governance Of the 2700 billion m3 global increase in water demand forecast for 2030 in the world, around 468 billion m3 (17%) are expected to be needed by India. India is a federal country comprising 28 states and 8 union territories. The states and union territories are further subdivided into districts and smaller administrative divisions. India has a population of 1.38 billion. The projected 2.8% per annum growth in water usage means that demand will exceed sustainable supply by 2030 (Joy and Samuel 2019). Groundwater is the major source of water across India; 85% of the population depend of it. Its quality is, however, variable, failing to meet the basic quality requirements in many areas. Surface and groundwater resources in India are mainly a state issue. Therefore, the measures that the Indian National Government can take are limited. The rapid depletion of groundwater as a result of extraction for agriculture and irrigation and other uses over the past 50 years has led to water law reform. There has also been a need for new specific regulations to deal with poor access and distribution of water due to caste, gender, and other separating issues. In India no specific groundwater access and allocation legislation arose until a few decades ago. Before, the basic principles of access and control were derived from the 1882 Indian Easements Act, which highlighted landowners easementary rights to collect and dispose of all water found under their land (Indian Easements Act, 1882). Thus, groundwater rights were—and in many cases continue to be—very much linked to land rights/ownership (Cullet and Gupta 2009). This implies that in India, groundwater is mostly controlled by individuals or legal entities that own or occupy land. Where easementary rights are strictly applied, landowners are not restricted in the amount of percolating water they can appropriate (Moench 1995). However, recently, even under common law principles, the importance of distribution, equity, justice, and sustainability has been recognised. For example, according to many current policies and laws in India, owners of the land cannot exploit groundwater beyond the replenishable level (Cullet 2009; Cuadrado-Quesada and Joy 2021) anymore. The Supreme Court affirmed that water, including groundwater, is a public good, the state is the trustee of all-natural resources which are by nature meant for public use. Furthermore, the Supreme Court of India decided to apply the public trust doctrine to groundwater and has told the states that considering groundwater as a ‘private property right’ is inappropriate. The Supreme Court has also recognised the human right to water (Cullet and Gupta 2009). An important aspect to mention, within the background of the Indian policy and legal frameworks, is that most of the groundwater laws avoid altogether the thorniest

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question of, which is the ‘legal status’ of groundwater itself. Most acts avoid direct statements on this issue, but the very fact of promoting the setting up of institutions controlled by state governments that can regulate groundwater use in indirect and direct ways reflects a conception of groundwater and surface water as a public good controlled by the state government (Mukherji and Shah 2005). Moreover, ongoing reforms of groundwater policy, law and regulations continue to bring environmental principles such as sustainable use, and equity as well as ideas of decentralisation, improved groundwater use, reallocation, and redistribution. As groundwater is the body of water most closely associated with specific localities, decentralisation has been a core concern in Indian’s policy and law reforms. As such, groundwater is the primary body of water to which panchayats (rural India’s elected, village-level governance/administration institution) have been given control rights under the decentralisation mandate of the Constitution Part IX (Constitution of India, 1949). In 1993, the 73rd Constitutional Amendment Act was passed by the Parliament in India requiring all states to amend their Panchayat Acts accordingly with the Constitutional provisions. This amendment establishes that the states shall organise village panchayats and endow them with such powers and authority as it may be necessary, in order to enable them to function as units of self-government (73rd Constitutional Amendment Act, 1993). A model bill for groundwater regulation, management, and governance was first proposed by the Indian National Government in the 1970s. It has been revised several times, but the current version still retains the basic framework of the original bill (Kulkarni et al. 2015). The current version of the Model Groundwater Sustainable Management Act is from 2016. Recent legislative activity by states indicates that they are generally ready to follow the framework provided by the model bill. This is the case of states adopting a ‘generic’ groundwater law like Kerala in 2002, Goa also in 2002 and Maharashtra in 2009. For the purpose of this chapter, it is discussed in detail the 2009 Maharashtra Groundwater (Development and Management) Act (referred to hereafter as the ‘Groundwater Act’), as well as the figure of the panchayats as key village organisations that are closely involved in groundwater governance issues.

8.3 Groundwater Legal, Policy and Institutional Framework—A Synopsis of Maharashtra The Groundwater Act includes provisions regarding protection, development, and governance of groundwater. Among the main elements of the Act are: (i) registration of wells; (ii) identification of critical areas where regulation and stringent restrictions on use are required in order to protect and conserve the resource; (iii) preparation of integrated watershed and water management plans and of groundwater use and crop plans; and (iv) participatory mechanisms in the form of institutions at different scales such as the District Watershed Management Committee (DWMC) and the Watershed Water Resource Committee (WWRC). The DWMC and the WWRC are the most important institutions through which the Act is operationalised.

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Chapter 2, Sect. 2.4 of the Groundwater Act says that ‘The state Authority, after receiving recommendations… based on scientific groundwater quality studies… is of the opinion that it is necessary or expedient in the public interest to regulate the extraction or the use of groundwater or both in any form in a watershed or aquifer area, shall declare such area to be a notified area…’. This elucidates how recent law reforms have tried to change groundwater access patterns in order to make them more sustainable. For example, it seeks to disincentivise drilling private wells without notifying of such use. However, such type of regulations can restrict the entry of new groundwater users (e.g., small farmers), privileging the older (and most common) users (big sugarcane plantations) and resulting in the continuance of inequities. The Groundwater Act recognises the importance of participation, in Chapter V, which reads as follows: ‘The Watershed Water Resources Committee shall be responsible for the community participation, as per the guidelines of the District Authority, with the objective of equitable and sustainable development, protection, conservation, regulation and management of groundwater resources…’. Despite this recognition, scholars argue that participation of people is cursory with no clearly laid out processes spelling out how participation should take place (Joy et al. 2008). Another participation related critique is the size of the unit. The watershed—as defined by the Groundwater Survey and Development Agency (GSDA)—is very large, about 30,000–50,000 ha. If people have to directly participate in groundwater use and governance then the scale has to be much smaller, like a micro-watershed or an aquifer. With most of Maharashtra covered with basaltic geology, aquifers are going to be confined; this has implications for use and governance. Hence, the importance of having an aquifer and/or a micro-watershed as the primary unit of governance (Manch 2018; Cuadrado-Quesada and Joy 2021). Several institutions have been brought in for support at implementing various aspects related to the Groundwater Act, however, lack of clarity and an overlap in roles, responsibilities and powers is likely to hamper the process of implementation. Broader policy and legal issues will also have an impact on the implementation of the Groundwater Act. For example, the process of notifying and de-notifying areas and the process of identifying water scarcity areas. The Groundwater Act has, according to some scholars, been a positive step towards improving the use, governance and protection of groundwater in the state. However, they have also highlighted many major issues that need to be reviewed (Kulkarni et al. 2015; Cuadrado-Quesada and Joy 2021). According to these scholars, any good law—and its rules—that hopes to regulate or guide the use of a common pool resource, though in practice treated as a private resource, like groundwater, calls for robust institutional mechanisms with clearly stated roles, responsibilities and powers. Moreover, it also needs to include concerns related to diverse uses (domestic, farming, and other livelihoods, industry, etc.), and users (domestic, agriculture, industry, commerce, etc.). One of the main criticisms of the Act—and its rules—has been that they seem to be centred around crops and agriculture water use. Currently agriculture uses about 70–75% of the groundwater, however, other uses like domestic (especially in the cities) and industrial are also increasing. There have been many intersectoral contestations and conflicts around water everywhere

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in India (rural-peri-urban conflicts; domestic-agriculture-industries conflicts). Therefore, inter-sectoral water use, reallocation and redistribution need to define and guide the Groundwater Act (Manch 2018). Even though the Groundwater Act passed in 2009, the rules of the Act came out in 2018 (2018 Maharashtra Groundwater Development and Management Draft Groundwater Rules). These are specific legal provisions that follow the Act to provide details as how to operationalise the Act. Among the main provisions included in the Rules are those related to crops planning. Section 14 indicates a top-down approach to crop planning; it thus raises the concern that not enough involvement of farmers will exist. As per the provisions of the Rules, the crop plan is prepared by the Agriculture Department (Sub-rule 4); it is then discussed with the panchayat and, after obtaining consent there, is placed before the gram sabha1 for approval (Sub-rules 7 and 9). In the process, farmers find themselves at the receiving end of these decisions. There are also no provisions regarding technical support to farmers so they can develop knowledge and skills to understand the geohydrology of the village or precipitation patterns. Furthermore, there are certain provisions that might go against the interests of the small and/or subsistence farmers. For example, one charges a levy on the use of existing deep wells (above 60 m) in non-notified areas (Sect. 8). Some scholars have suggested that such levy should be charged only to farmers having water intensive crops and should be related to the size of the area under such crops; and small and/or marginal farmers should be exempt from it (Manch 2018; Cuadrado-Quesada and Joy 2021). The Groundwater Act and the Rules, somehow, are a continuation of much broader water sector reforms initiated in Maharashtra since the early 2000s. The reform process began with the 2003 Maharashtra state Water Policy and was followed up by two important legislations: the 2005 Maharashtra Water Resources Regulatory Authority (MWRRA) Act, and the 2005 Maharashtra Management of Irrigation Systems by Farmers Act (MMISFA). Prior to these two important legislations, the Government of Maharashtra launched the Water Sector Improvement Project (WSIP) through a World Bank loan assistance of USD $325 million. Many in India—but also elsewhere—including the World Bank, have welcomed the Maharashtra water sector reforms and they see Maharashtra as the ‘model state’ for water sector reforms in India. Table 8.1 shows the development of surface and groundwater legal frameworks in India with a focus on Maharashtra. Despite the journey of water law reforms, severe drought conditions experienced by increasing number of villages in many parts of Maharashtra, year after year, evidenced that water problems continue (Joy and Samuel 2019). Moreover, every news of drought in Maharashtra contrasts the exponential growth of sugarcane in the state. While the droughts continue, sugarcane production increases despite its high need for water (Joy and Kulkarni 2010). This paradox of droughts co-existing with the growth of sugarcane seems to indicate that there is not a real problem of 1

The gram sabha is the general body of the panchayat; it includes all the members of the village who are above 18 years old. As mentioned earlier, the panchayat is the elected body which manages the affairs of the village.

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Table 8.1 Development of surface and groundwater legal frameworks in India with a focus on Maharashtra Year

Legal framework

1882

Indian Easements Act. There was no legislation regarding groundwater resources. There was a link between land ownership and ownership and control over groundwater

1949

Constitution of India. Article 246 declares that the state governments have the exclusive power to regulate water supply, irrigation, canals, drainage, embarkments, water storage, hydropower and fisheries

1974

Water (Prevention and Control of Pollution) Act. Addresses the importance of preventing and controlling water pollution and to maintain and restore the wholesomeness of water

2002

National Water Policy. It says that public policies on water resources need to be governed by certain basic principles such as equity and social justice. Water needs to be managed as a common pool community resource held, by the state, under public trust doctrine

2003

Maharashtra state Water Policy. It creates the enabling environment for a better and more equitable water management. It restructures the fundamental roles of the state and water users. It creates a new institutional arrangement at the state level to guide and regulate water. It also promotes the development of new technologies and enacts appropriate legislation and rules to give effect to all the new provisions

2005

Maharashtra Water Resources Regulatory Authority (MWRRA) Act. It aims to adequately regulate water resources within the state of Maharashtra. It also facilitates and ensures judicious, equitable and sustainable management, allocation and utilisation of water resources and fix the rates for use of water for agriculture, industrial, drinking, and other purposes

2005

Maharashtra Management of Irrigation Systems by Farmers Acts. This Act provides management of irrigation systems by farmers and other issues liked to them. It provides specific regulations for the Water Users Associations (WUAS)

2009

Maharashtra Groundwater (Development and Management) Act. It provides new guidelines regarding protection, development, and governance of groundwater

2018

Maharashtra Groundwater (Development and Management) Act Rules. It provides for tools to operationalise the guidelines established by the 2009 Maharashtra Groundwater (Development and Management) Act

Source Author

water availability in absolute terms or scarcity of water, but a distribution problem (Zwarteveen et al. 2017). This scenario mirrors the one existing in the coastal communities of Santa Cruz, Guanacaste, Costa Rica, where the communities were thirsty while the golf courts were kept green. These two scenarios emphasise that drought is not always a lack of absolute availability of water but a consequence of unequal distribution, which benefits some particular users and exclude others (Joy et al. 2008; Zwarteveen et al. 2017). For the last three decades, the government of Maharashtra and some NGOs have increased attention to soil and water conservation measures, mainly to integrate watershed development programmes as a drought proofing strategy (Joy et al. 2014). One of these programmes is the Adarsh Gaon Yojana (AGY) scheme, a model village scheme to help improve the conditions in rural villages. This is an ambitious proposal that involves creating decentralised water bodies, new water harvesting structures,

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increasing the groundwater availability, and creating awareness for water conservation through social mobilisation and participation. One village that was benefited by the AGY scheme is that of Hivre Bazar. The Maharashtra state response to such experiences has been to treat them as exceptions and thus not engage seriously with them (Joy et al. 2014). However, certain sections in the civil society have been using such isolated cases of ‘success’ to argue against any government reforms in groundwater law. This is also a problematic position as such ‘successes’ would continue to remain isolated examples within the state. If the overarching objective is to bring in groundwater governance, which engages with questions of equity, and sustainability, then probably there is the need to involve both: government law reforms and community practices and innovations. This is discussed in detail below with the stories of the village of Hivre Bazar.

8.4 Chasing Wellbeing in Rural India 8.4.1 Location and Importance Hivre Bazar is located in the rain shadow region of the Sahyadri mountain range, in Maharashtra’s Ahmednagar district (Fig. 8.1). The main village settlement is situated at the bottom of the hills, towards the upper reaches (south) of the watershed; while the better agricultural lands are spread towards the northern side. The geographical area of the village is about 977 ha, about 795 ha are cultivable, the remaining are non-agricultural, including 70 ha of forest and wetlands. Hivre Bazar is fairly homogeneous, having the Maratha caste as the dominant one in terms of both number of households and size of land holding (Joy and Paranjape 2004). Most of the people in the village is dedicated to agriculture and have sorghum and millet as the main crops. They also cultivate onions, pulses, groundnuts, cucumber, coriander, spinach, and occasionally some fruits. However, in the last 15 years people have taken jobs in the military and also as school teachers (Sangameswaran 2006). The average annual rainfall in the district is 579 mm (Government of Maharashtra, 2014). The principal form of irrigation in Hivre Bazar is by open bore-wells. Back in the 1970s, Hivre Bazar was a typical semi-arid village of India, where water was scarce and women had to walk long-distances for drinking water. Agriculture was very low, being possible only in the rainy season and only for a limited number of crops (Sangameswaran 2006). Hivre Bazar was also suffering from droughts and economic and social deterioration, which included a lot of problems such as illegal distilleries and alcoholism (Varghade 2002).

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Fig. 8.1 Map illustrating the case study of Hivre Bazar and the main groundwater resources. Source Author

8.4.2 Background and Context Back in the 1970s, the village of Hivre Bazar was in a deplorable situation as most people were suffering from economic and socio-environmental deterioration. By 1989, people in Hivre Bazar were clear that they needed a significant transformation and started to look for ways to realise that transformation. This included a change in the leadership of the village. Popatrao Pawar was elected unopposed to the panchayat as sarpanch (head of the panchayat) in 1989. He began working on non-controversial issues, such as repairs of the village temple and adding rooms to the then one-room school. Then, he consulted about the most pressing problems, and the problem that most concerned people was the availability of drinking and irrigation water, as well as the low productivity of agriculture (Sangameswaran 2006). In that moment, there were only two hand-pumps in the village and they were not working, which caused women to have to walk 2–3 km to fetch water (Joy and Paranjape 2004). Soon after becoming sarpanch, Popatrao Pawar started to change the situation in the village, for example, the handpumps were fixed and the community had some water again. In the early 1990s, Hivre Bazar won the Adarsh Gaon Yojana

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(AGY) scheme (discussed in Sect. 8.3). This program had some requirements that villages had to fulfil in order to be eligible. They basically consisted in five rules or panchasutri: 1. 2. 3. 4. 5.

restrictions on free grazing ban on tree felling ban on alcohol adoption of family planning voluntary labour.

This scheme was an opportunity for Hivre Bazar to benefit from a government programme and, at the same time, to shape the collective future of the village. The most prominent impact of the program was an increase in groundwater resources. This in turn has increased domestic water supply, irrigation, agricultural productivity, and animal husbandry. These five rules and their implication for groundwater law and governance are discussed in detail below. In addition to the AGY rules, when the project started, Hivre Bazar adopted and implemented a ‘set of practices’ regarding groundwater. These practices faced, on one hand concerns of access, allocation and distribution, and on the other hand with matters of water use—for example, the ban on wells. The practices about access, allocation and distribution can be divided into two main groups: 1. 2.

those that determine who will access water and; those which define how water will be allocated and distributed.

After this background and context, the next subsections discuss the following three stories: (i) the appointment of Popatrao Pavar as a sarpanch; (ii) political participation in the gram sabah, and; (iii) law and local groundwater practices.

8.4.3 A Leader Arises and the Importance of Awareness Popatrao Pawar is a charismatic person who after being away from Hivre Bazar for a long time pursuing his studies (he received a Master degree in Commerce from Pune University) was convinced—by many—to return and make his village a better place. The strong confidence transmitted by numerous people from his village and his personal desire to improve the economic and socio-environmental condition of his hometown made Popatrao Pawar came back to Hivre Bazar. In 1989, he won for the first time the elections and became the sarpanch. There began a story of transformation for Hivre Bazar. Popatrao Pawar began to work, focusing on environmental, economic, and social issues, including the villager’s main concerns, e.g., lack of water, low productivity, and the need to migrate from Hivre Bazar searching for better opportunities. As literature on natural resources use, management and governance suggest, crisis often provides the impetus to pursue and find possible ways to address

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people’s concerns (Ostrom 2010; Holley et al. 2012). Particularly in the groundwater context—as demonstrated by the findings in Hivre Bazar—environmental and social crises have been strong motivators for people to get involved in water issues. In other words, crisis and leadership tend to come to existence together. This was also illustrated by the findings of Angas Bremer (Chap. 3), Delft (Chap. 5), Guácimo (Chap. 6) and the coastal communities of Santa Cruz (Chap. 7). The findings of this case study illustrate how leaders flourished when problems need to be addressed. The findings suggest that leaders can play a fundamental role in addressing problems. As highlighted by an interviewee: ‘The leadership in the village was limited… we needed a person who was capable, knowledgeable, and well-educated… from the village, who cared about what was going on in Hivre Bazar…’ (Interview India No. 2, Local resident, 15 October 2017). When Popatrao Pawar came back to Hivre Bazar, he encouraged and organised the village to address problems. Better water access, distribution, and equity were the main aims. Popatrao awareness facilitated the village to understand the need of a change regarding groundwater use and governance. Critically, the village understood the vulnerability and finite nature of water resources, the particularities of groundwater—e.g., slow recharge rate—and that without rational and sustainable use, it would not last forever. It seems then that another important feature in this discussion is that of awareness. Awareness has a critical role in changing mindsets regarding the improvement of groundwater use, allocation, distribution, and its overall sustainability. Lack of change to the manner in which groundwater resources were being extracted, distributed and affected by other processes would have render sustainability impossible. Therefore, it seems that awareness of the vulnerability of groundwater resources is strategic (Varady et al. 2013). While awareness is critical to promote information and learning, generally there is a low level of public awareness about surface and groundwater. Particularly groundwater users do not fully understand how it functions and the threats it faces (Wijnen et al. 2012). Nevertheless, as Hivre Bazar illustrates, raising awareness not only educate, but also motivate people to become, and to stay, informed and involved in groundwater governance. This was also well illustrated in the case studies of Angas Bremer (Chap. 3), Delft (Chap. 5), and Santa Cruz (Chap. 7). Popatrao—along with some other community leaders—will later on start some new practices regarding groundwater. These practices include issues of access, allocation and distribution—including who will access water and how much as well as prohibited uses and no more drilling of wells.

8.4.4 Political Participation in the Gram Sabah In India the panchayats have been given rights of control over local sources of surface and groundwater in their communities, under the decentralisation mandate of the Constitution, which gave birth to the political power of the panchayats (discussed

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in Sect. 8.2). The panchayat in Hivre Bazar—like most in Maharashtra—is elected every 5 years, has 7 members—2 of which should be female—and meets monthly. The sarpanch, Popatrao Pawar, has now held the position for over 30 years. It can be argued that such continuity has been an important aspect for the sustainability of community water initiatives and related projects. However, it can also be debated how democratic is to have the same sarpanch for such a long period of time? The gram sabah meetings are held on a mandatory basis at least five times per year—with a male and female from each family expected to attend and contribute to the discussion and decision-making. The issues discussed at the meetings can be of quite diverse nature with far reaching consequences, extending well beyond groundwater use, management, governance and sustainability, including for example selling land to outsiders. According to the interviews conducted, no topics of irreconcilable conflict have been reported during the time that Popatrao Pawar has served as a sarpanch. Even though Hivre Bazar has been acknowledged by many (state and national government institutions, and practitioners) as very strong on community participation and equity, some scholars have pointed out to that the dynamics of participation are more complex and not as straight forward as they seem (Joy and Paranjape 2004; Sangameswaran 2006). The gram sabah meetings are well attended, although most people—including most women—remain largely silent. This was manifested in all the interviews made. Most people attend the gram sabah meetings and though they might not speak much, they are very much aware of and endorse programs and future plans. Informal modes of communications are much more important than formal ones in Hivre Bazar (Joy and Paranjape 2004). After the interviews, it would seem that participation in Hivre Bazar has clearly defined contours. While the silence in meetings is not necessarily a sign of non-participation, it is difficult to say to what extent are most people really involved in decision-making. This silence tends to privilege the collective well-being of the village over group claims of particular sections of society. This is a common practice of participation in rural India (Argade and Narayanan 2019). Moreover, people in Hivre Bazar, and the landed especially, have faith in the decisions of the leaders, i.e., Popatrao Pawar. The interviews conducted in Hivre Bazar also seem to confirm that many marginal farmers, landless and Dalits view as positive the developments in Hivre Bazar compared to the past. Thus, the silence of many could also be explained as being relatively happy with the current situation. State government institutions have worked together with the panchayat. Hivre Bazar is a case of a village playing an important role in decentralised surface and groundwater governance and overall development, where the state has been involved. The accomplishments offer important clues of what constitutes and how can be possible to improve groundwater governance while fostering political participation. The story of Hivre Bazar has been very much about building a collective pride and showcasing it to the state of Maharashtra and the entire country. This pride is undoubtedly built on an achievement, namely improvement of groundwater availability in the village.

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8.4.5 Law and Local Groundwater Practices—How Are They Intertwined? The third and last story of this chapter is about bringing together state government laws/regulations and local water practices. Soon after Popatrao Pawar got elected as sarpanch, slowly but firmly the situation in Hivre Bazar started to change. The first major attainment was to receive the AGY scheme, which provided important economic funding. It is interesting to discuss the five regulations that came with the AGY scheme, because they have become common practices that are closely related to groundwater practices not only in Hivre Bazar but in a myriad of villages in rural India. These are explained below: 1.

2.

3.

4.

Restrictions on free grazing. One of the first rules taken in Hivre Bazar was establishing constraints for grazing, as free grazing can have negative impacts on the vegetation and the overall environment. When the AGY scheme started, grazing limitations were imposed on certain areas at a time—e.g., on a rotational basis (Joy and Paranjape 2004). All the interviewees expressed that this restriction has been particularly favourable as free grazing can have adverse impacts on the vegetation of the village. Ban on tree-felling. Together with the restrictions on free grazing a ban on tree-felling was introduced. After the restriction on tree-feeling a resolution was passed in the gram sabah to ban cutting of trees and branches from the common lands in the village. However, people could cut branches of trees from their own lands. The ban on tree-feeling started a reforestation process in Hivre Bazar, where different types of trees were planted. Native species of trees, e.g., babul, tamarind and bamboo, were chosen because they were suitable to the local climate. Some of the chosen land areas contain hydrogeologic conditions that facilitate aquifer recharge (Sangameswaran 2006). According to all the interviewees the ban on tree-felling and the reforestation have been quite positive regarding groundwater protection and overall sustainability in Hivre Bazar. Ban on alcohol. Even though this regulation is not closely related to groundwater governance, is another essential condition of the AGY scheme, which has shaped the overall development of Hivre Bazar. This ban seeks to break the vicious cycle between alcohol and debt, which is believed to come as improvement in the social and economic life of the villagers (Joy and Paranjape 2004). All the interviewees confirmed that the ban on alcohol has improved dramatically the social context in the village. There are fewer fights and women run less risk of being harassed. Since some families that were having a brewery had their livelihoods affected, the panchayat facilitated them a bank loan to enable them to have different economic activities such as farming. These new farmers are also involved in groundwater governance. Family planning. This has been a rule coming from the national government, who perceives that the growing population is a major cause of poverty and underdevelopment, and represents an increasing pressure on natural resources, including groundwater. Some scholars have criticised this rule on several

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grounds, including its bias against the poor and women (Hartmann 1995; Sangameswaran 2006). Shramdaan or ‘voluntary labour’. Voluntary work is another prominent mandate in many developmental and natural resource management schemes such as AGY, although the exact form it takes can differ. In Hivre Bazar, although voluntary labour for the watershed project was obligatory under the AGY, it has also been used beyond this project for many social and environmental activities (Sangameswaran 2006). All the interviewees confirmed that many people are engaged in some kind of voluntary work related to groundwater conservation in the village.

In addition to the AGY regulations, Hivre Bazar voluntarily—through the gram sabah—adopted and implemented another set of local practices particularly regarding the use of water and to continue addressing the many socio-environmental concerns in the village. Regarding access and distribution, people with land have had many benefits from the AGY program—e.g., improved access as there is more availability of water. These benefits have been documented by some scholars (Boyce 1988; Vaidyanathan 1999; Sangameswaran 2006). Within these practices, water follows ownership of land, thus the owner of the groundwater is the owner of the land. Of course, this situation is not benefiting the landless people in Hivre Bazar. Regarding water use, perhaps the most notorious village practices are the no building of private bore-wells for agriculture and the no cultivation of water intensive crops such as sugar cane. The practice of no building private bore-wells avoided water resources overexploitation and, at the same time, increased water availability. It also facilitates the establishment of mechanisms for continuous protection of groundwater systems, which are essential for conserving groundwater, facing scarcity, pollution, depletion, and climate change, and for enhancing its sustainability. The practice of no cultivation of water intensive crops has also showed its positive effects. In Hivre Bazar, this has helped to ensure that groundwater use is more sustainable and equitable, as more people now can share the water instead of when the main water users were the sugar cane farmers. As mentioned by a participant, ‘In Hivre Bazar water intensive crops are not used anymore… we do not have sugar cane crops…, we changed several hectares from sugar cane to more water efficient crops… This led to better water availability, increased agricultural diversity production and a number of other benefits’ (Interview India No. 5, Local residence, 20 October 2017). In order to convince the sugar cane growers to diversify their crops the panchayat offered them economic incentives, which were received positively by most sugar cane growers. These practices have been enforced mainly through collective rule-making efforts and social sanction. Villagers ‘supervise’ to make sure that no one is drilling borewells or growing water intensive crops. Most people in Hivre Bazar are convinced that the situation is improving but if they start using too much water, things will go back to the way they were. As one interviewee highlighted: ‘[we] do not want to experience again the water shortages of the past, and therefore, are happy using only shallow dug wells and growing more water efficient crops’ (Interview India 13, Local residence, 30 October 2017).

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The adoption of the state regulations (AGY scheme) and the local practices led to better water availability, increased agricultural production, and a number of other benefits. Hivre Bazar is, in many senses, a model community where many sustainability concerns have been addressed. Though attempts have been made to address the distresses of marginalised sections, namely the poor and/or marginal farmers, the landless, and the Dalits, these attempts have shied away from addressing the two major issues: land and water inequality. While this might not hinder further developments, it suggests possible limits to its vision, what community organisations can or cannot do and possible trade-offs between concerns such as equity and sustainability. Therefore, even though Hivre Bazar has been good at promoting sustainability and improving its productivity, it continues to struggle with an equitable access to land and water, and water sharing among all uses and users. There are still some people in the village who do not have borewells nor access to irrigation water.

8.5 Conclusions The stories of Hivre Bazar, demonstrate that law (formal instruments), when coexisting with local practices—initiated by community leaders—can address water problems while shaping local groundwater governance, particularly when it comes to sustainability but also regarding equity. The Hivre Bazar stories tell us how a community has been developing certain rules of thumb2 (e.g., ban in wells). The communities’ groundwater practices may not be the best scientifically evolved ones using sophisticated models; however, they bring local knowledge and the power of social ‘consensus’ or acceptability that can take the groundwater governance agenda forward. This brings to the discussion the question of how the government engages with community practices, innovations and successes while crafting formal groundwater laws and regulations. The typical response of the government of India and the Maharashtra state is to treat such practices, innovations and successes as ‘exceptions’. The findings of the Hivre Bazar case study demonstrate that a change in mindset first and then in practices occur when problems/crisis become evident, and there is leadership, and awareness. These factors facilitated the development of understanding, learning and knowledge, and the opening up of different governance paths for groundwater resources. The condition of socio-environmental chaos in Hivre Bazar motivated the community to ‘bring’ a leader to help addressing the pressing problems. This illustrates the important role of leaders. A common characteristic of 2

Rule of thumb refers to an approximate method for doing something, based on practical experience rather than theory or science.

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leadership is caring about the place, nature and the people. Popatrao Pawar started implementing changes to the point that the government realised that there were ‘good initiatives’ going on in Hivre Bazar and that was the reason why they received the AGY scheme and got government funding. This funding allowed Hivre Bazar to continue developing new water practices and moving towards improved governance of groundwater resources, productivity, and sustainability. This also showed that leaders have the ability to engage with government officials and function as a bridge between villages/communities and government authorities, which many consider unapproachable. The adoption and implementation of law (including groundwater law) in Maharashtra can work fruitfully when accompanied by village practices and the strength and persistence of community leaders like Popatrao Pawar. The case study of Hivre Bazar provided some examples on how and to what extent it is possible to achieve this. Summarising, this case study demonstrates, in the Indian context, an achievement of sustainability and improvement of overall livelihoods in a rural village. However, it is not possible to state the same in regard to equity, as the efforts to address the griefs of marginalised groups—e.g., marginal farmers, the landless and the Dalits—continue to be limited. Hivre Bazar has not been able to create an equitable access to water and water sharing among uses and users. Finally, the findings of this case study show that the design and implementation of law as well as locally designed environmental and water practices work better when they are intertwined. Therefore, the need to have the government including local practices when designing environmental, water and groundwater law. Evidently, all these community practices are closely entangled with community water needs. The table below summarises the case study of Hivre Bazar (Table 8.2).

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Legal Frameworks 1882 India Easement Act, Government of India. 1949 Constitution of India, Government of India. 2009 Maharashtra Groundwater (Development and Management) Act, Government of Maharashtra. 2018 Maharashtra Groundwater (Development and Management) Act Rules, Government of Maharashtra. Table 8.2 Summary/Hivre Bazar, Maharashtra, India Summary/Hivre Bazar, Maharashtra, India Location: Contextual factors: In the rain shadow region of the Sahyadri • The rapid depletion of groundwater in India, mountain range, in Maharashtra’s Ahmednagar as a result of extraction for irrigation and rural district, in the west of India other uses over the past 50 years, has led to surface and groundwater law reform • There has also been a need for new laws and policies to deal with poor access and distribution of water due to caste, gender, and other separating issues • In India no specific groundwater access and allocation laws arose until a few decades ago. Recently, the importance of equity, and sustainability has been recognised • The Supreme Court affirmed that water, including groundwater, is a public trust and also recognised the fundamental human right to water Situation: • Groundwater is the major source of water across India; 85 per cent of the population depend of it. Its quality is, however, variable. It is the primary body of water to which panchayats (local self-governance systems in India at the village level) have been given control rights by the Constitution • Hivre Bazar used to be a typical semi-arid village of rural India suffering from droughts, economic and socio-environmental deterioration. Most of the people in the village is dedicated to agriculture and have sorghum and millet as the main crops. They also cultivate onions, pulses, groundnuts, cucumber, coriander, spinach, and occasionally some fruits. The average annual rainfall in the district is 579 mm and the principal form of irrigation in Hivre Bazar is by open bore-wells • By 1989, Hivre Bazar needed a significant change. Popatrao Pawar was elected as a sarpanch. He began working on non-controversial issues, and then, he consulted about the most pressing problems. The problems that most concerned people were the availability of drinking and irrigation water, and the low productivity of agriculture. In that moment, there were only two hand-pumps in the village and they were not working, which caused women to have to walk 2–3 km to fetch water. With Popatrao Pawar started to change the situation, for example, the handpumps were fixed and the community had some water again (continued)

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Table 8.2 (continued) Summary/Hivre Bazar, Maharashtra, India Results: • In the 1990s, Hivre Bazar won the Adarsh Gaon Yojana (AGY) scheme, an opportunity to benefit from a government programme and funding and shape the future of the village • Popatrao Pawar encouraged and organised the village to address problems. Water access, distribution, and equity were among the main aims. Popatrao awareness facilitated the village to understand the need of a change regarding groundwater resources use and governance • Popatrao encouraged participation in the gram sabah meetings, with a male and female from each family expected to attend and contribute to the discussion and decision-making • The AGY provided important economic funding and some regulations: restrictions on free grazing (as a way to protect vegetation and the environment), ban on tree-felling (which helped water protection), ban on alcohol (which has improved dramatically the social environment in the village), family planning and voluntary labour • The adoption of these regulations (designed by the government and further complemented with practices developed by the village) led to better water availability, increased agricultural production, and other benefits • Even though Hivre Bazar has been good at promoting sustainability and improving its productivity, it has not been able to stimulate an equitable access to water and water sharing Source Author

Interviews Conducted India Interview No. 2, Local resident, 15 October 2017. Interview No. 5, Local resident, 20 October 2017. Interview No. 13, Local resident, 30 October 2017.

References Argade P, Narayanan N (2019) Undercurrents of participatory groundwater governance in rural Jalna, Western India. Water Altern 12(3):869–885 Boyce J (1988) Technological and institutional alternatives in Asian rice irrigation. Econ Polit Weekly 23(14) Cuadrado-Quesada G, Joy KJ (2021) The need for co-evolution groundwater law and community practices for groundwater justice and sustainability: Insights from Maharashtra India. Water Altern 14(3):717–733 Cullet P (2009) Water law, poverty and development—water law reforms in India. Oxford University Press Cullet P, Gupta J (2009) India: the evolution of water law and policy. In: Dellapenna J, Gupta J (eds) The evolution of the law and politics of water Hartmann B (1995) Reproductive rights and wrongs: the global politics of population control. South End Press, Boston Holley C, Gunningham N, Shearing C (2012) The new environmental governance. Earthscan

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Joy K, Biksham G, Suhas P, Vindo G, Shruti V (eds) (2008) A million revolts in the making: understanding water conflicts in India, Routledge Joy K, Kulkarni S (2010) Engaging with the changing water policy discourse in Maharashtra. In: Globalisation governance grassroots series no. 12. National Centre for Advocacy Studies, Pune Joy K, Kulkarni S, Dik R, Margreet Z (2014) Repoliticising water governance: exploring water re-allocations in terms of justice. Local Environ: Int J Justice Sustain 19(9):954–973 Joy KJ, Paranjape S (2004) Watershed development review: Issues and prospects. Bangalore: Centre for Interdisciplinary Studies in Environment and Development (CISED) (now part of ATREE) Joy KJ, Paranjape S, Kulkarni S (2008) Multi-stakeholder participation, collaborative policy making and water governance: the need for normative framework. In: Vishwas Ballabh (ed) Governance of water: institutional alternatives and political economy. Sage, Los Angeles, London, New Delhi, Singapore Joy KJ, Samuel A (2019) The bittersweet truth of sugarcane in Maharashtra. Firstpost, 31 May. https://www.firstpost.com/politics/the-bittersweet-truth-of-sugarcane-in-maharashtra-673 5001.html (accessed on 6 January 2022) Kulkarni H, Shah M, Vijay Shankar P (2015) Shaping the contours of groundwater governance in India. J Hydrol Regional Studies 4:172–192 Manch (2018) Draft rules for implementation of the Maharashtra groundwater (Development and Management) Act 2009: comments and suggestions by Lokabhimukh Pani Dhoran Sangharsh Manch. Submitted to [email protected] and [email protected] on 29 September Moench M (1995) When good water becomes scarce: objective and criteria for assessing overdevelopment in groundwater resources. In Moench M (ed) Groundwater availability and pollution: the growing debate over resource condition in India. Monograph. VIKSAT-Pacific Institute for Studies in Environment, Development and Security Mukherji A, Shah T (2005) Groundwater socio-ecology and governance, a review of institutions and policies in selected countries. Hydrogeol J 13:328–345 Ostrom E (2010) Polycentric systems for coping with collective action and global environmental change. Glob Environ Chang 20(4):550–557 Sangameswaran P (2006) Equity in watershed development: a case study in Western Maharashtra. Econ Polit Weekly:2157–2165 Vaidyanathan A (1999) Water resource management: institutions and irrigation development in India. Oxford University Press Varady RG, van Weert F, Megdal SB, Gerlak A, Iskandar CA, House-Peters L (2013) Groundwater policy and governance, thematic paper no. 5. Groundwater governance: a global framework for country action. GEF Varghade S (2002) Hivrebajarchi Yashogatha (The success story of Hivre Bazar). Prafalla Publications Wijnen M, Augeard B, Hiller B, Ward C, Huntjens P (2012) Managing the invisible: understanding and improving groundwater governance. World Bank Zwarteveen M, Kemerink-Seyoum J, Kooy M, Evers J, Acevedo-Guerrero T, Batubara B, Biza A, Boakye-Ansah A, Faber S, Cabrera-Flamini A, Cuadrado-Quesada G, Fantini E, Gupta J, Hasan S, ter Horst R, Jamali H, Jaspers F, Obani P, Schwartz K, Shubber Z, Smit H, Torio P, Tutusaus M, Wesselink A (2017) Engaging with the politics of water governance. Wiley Interdiscip Rev (WIREs) Water 4:1–9

Chapter 9

Between Law and Practice

One of the most sincere forms of respect is actually listening to what another has to say Bryant H. McGill

9.1 Introduction This chapter presents a reflection on all practices of groundwater use, allocation, distribution, and protection as well as the different formal environmental, water and groundwater law, policy and regulatory instruments mentioned in the previous 6 chapters. What do most of the groundwater practices discussed in this book have in common? What are the outliners of the groundwater practices identified in this research? Who are the main actors behind these practices? How and to what extend the practices are intertwined with groundwater law? What are the major differences and similarities among groundwater practices and groundwater law in countries of the Global North and countries in the Global South? What needs to be changed and improved in groundwater law, and what are possible ways to do that? This chapter discusses first the common practices found regarding the invisible water. Subsequently, it provides a reflection on the outliers’ practices. It then echoes on some of the core differences between groundwater practices and groundwater, water and environmental law in countries in the Global North and countries in the Global South. After this, it problematises the need (everywhere) of ‘conversations’ between groundwater practices and law. This is followed by a reflection on the core actors behind groundwater practices—and how these have helped to move forward equity and sustainability. Finally, it presents the conclusion.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_9

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9.2 Most Common Invisible Waters Practices It is interesting to reflect on customary law when discussing practices. It is acknowledged by the outset that law has historically been developed by customary practices. This means that certain behaviours or practices were so common that they became the basis of the customary law (to encourage or to prohibit behaviours or practices). Customary law in many countries were gathered into written form, providing the basis for modern law. This book then seeks to reflect on the most common practices found so they can be considered as fundamental ‘elements’ when designing future groundwater law and/or reforms. The most common groundwater practices found within the six case studies discussed in this book include as follows:

9.2.1 Reduced Groundwater Use When There is a Scarcity Problem Normally, when problems regarding lack of groundwater are revealed, the understanding by users of the situation drive to a reduction in groundwater use or a shift to a more sustainable use of groundwater (Lopez-Gunn 2003; Wijnen et al. 2012). Such problems promote the development of learning and knowledge, which lead to disposition to understand groundwater systems. This practice was clearly shown in most of the case studies examined. For example, in Angas Bremer, water intensive irrigated lucerne and dairy farming were switched to more water efficient wine grapes production. The irrigators in Angas Bremer also started to identify and use different water sources—which caused a relief to groundwater sources. In the coastal communities of Santa Cruz, not authorising new groundwater permits (due to scarcity) led to better control and thus it became a common practice by some of the ASADAs. In the case study of Hivre Bazar, it was also decided to change crops in order to include more water efficient ones. In that case study even a ban against certain crops e.g., sugar cane was imposed in order to reduce groundwater use. This practice, in all the case studies, has avoided the overexploitation of groundwater resources, making groundwater availability more broad-based. The need of reducing groundwater use lead us to the second most common practice found in this research: the eagerness to understand what groundwater is and how does it work.

9.2.2 Capacity-Building or Trainings to Improve Groundwater Understanding by Users Linked to the water scarcity but also to broader groundwater related problems such as pollution and excess, there is a need—for groundwater users—to understand how

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the resource works, behave and recharge (Varady et al. 2013). This involves meetings, discussions and trainings with common users of groundwater and groundwater experts—e.g., hydrogeologist (normally, but not limited to, government officials). These interactions lead to understand how groundwater systems works, and subsequently awareness emerges, increasing both the desire to and the likelihood of improving groundwater governance (Ostrom 1990, 2010). The awareness expands mindsets locally, nationally, and globally, in order to move towards sustainable groundwater use. Not understanding how groundwater resources are being extracted and affected by many different uses and processes—e.g., wastewater discharges— makes impossible to achieve sustainability or a rational use. Therefore, knowledge about groundwater resources is key in this discussion. This kind of capacity building was found in all the case studies—however in very different levels. Perhaps the best examples were Angas Bremer and Delft. In Angas Bremer government officials (from the Ministry of Water) worked very closely with the irrigators to explain how groundwater systems behave. In Delft, millions of euros were spent by the municipality, the province, and the water board to understand how groundwater levels change over time and this knowledge was broadly shared with the community. In the case studies of Guácimo, coastal communities of Santa Cruz, and Hivre Bazar even though there was some capacity-building to better understand groundwater systems, it was considerably less (see Chaps. 6, 7 and 8 respectively).

9.2.3 Monitoring The third common practice found is the existence of monitoring processes, which allows for the collection and recording of data to accurately record how much water is being used, and how much water is left (for humans, non-humans, and the environment). In the same sense, monitoring is useful for determining water quality (to judge whether there is an acceptable absence of pollution) and taking pertinent actions when thresholds have been pushed. However, the monitoring of groundwater resources is complex and requires expertise and funding. Monitoring is complicated by a range of variables, such as the unknown effects of climate change and/or significant numbers of illegal extractions even though new technologies such as remote sensing are improving the ability to estimate groundwater use (Foster et al. 2009; Jarvis 2014; Varady et al. 2016). Importantly, all the case studies discussed in this book showed some engagement with monitoring processes. It can be argued that the most robust monitoring examples were Angas Bremer, South West and Delft—which is not surprising as they are located in countries in the Global North. However, Guácimo, coastal communities of Santa Cruz, and Hivre Bazar also illustrated monitoring practices (albeit limited) and their benefits.

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9.2.4 Reforestation/Creation of Protection Areas Besides monitoring, another significant groundwater practice found in this research is reforestation and/or the establishment of protection areas for the aquifers. The creation of aquifer protection areas, such as restricted areas, has been discussed in the surface and groundwater literature as a mechanism that tends to promote sustainability (Varady et al. 2016). These areas include the recharge areas of the aquifers, which allow surface water to move downward from the surface thereby replenishing the groundwater and allowing the aquifer to continue its existence (Alley 2001). Moreover, creating such areas contributes to better regulate land use activities that pose a potential to contaminate or otherwise threaten aquifer water quality. This practice was found in Angas Bremer, coastal communities of Santa Cruz and Hivre Bazar. In Angas Bremer, for example groundwater protection areas were established. Protection areas were revegetation areas that helped to expand the area of deep-rooted, native, non-irrigated vegetation in order to improve the quality of the water-table. The creation of these areas was also included in the WAP, requiring each irrigator to maintain a minimum of two hectares of deep-rooted, native, non-irrigated vegetation for every 100 ml of allocated water. In the coastal communities of Santa Cruz some ASADAs first purchased strategic lands and then implemented reforestation activities e.g., planting native trees. In Hivre Bazar, they started with a ban on treefalling, which then turned into an entire reforestation process, which also included the creation of some aquifer protection areas.

9.2.5 Groundwater Leadership The fifth common groundwater practice found in this research is groundwater leadership. This practice is the result of a feeling of ownership, a feeling of caring about the resource and the need to protect it. It means that, when people perceive groundwater as part of their heritage, they tend to preserve it, protect it and even to fight for it. Caring and protecting is closely tangled with the term scale, a concept used by social scientists to refer to the relationship between geographic (environmental) and political (human) units. The size of and the relationship between natural and social units is critical to understand and evaluate environmental governance in general (Gibson et al. 2000) and groundwater governance in particular. In recent decades, various transformations of groundwater governance (and other natural resources) have been carried out. These transformations entailed devolution to lower scales of governance, increased civil society participation and new types of community organisations. For example, in the case studies of Angas Bremer, Guácimo, Santa Cruz and Hivre Bazar, the community leaders were motivated by an awareness of the vulnerability of groundwater resources and a strong connection to the environment in which they were born and had lived. This connection provided a sense of belonging to and caring about a particular place, including natural factors, peoples, and culture.

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And there was rooted the desire to protect that socio-natural environment, including biodiversity, forests, rivers and groundwater.

9.2.6 Development as Business as Usual Contemporary uses of the term development include an intensified groundwater exploitation, usually encouraged by national public policies (Zwarteveen and Boelens 2014). This practice of ‘development’ causes important groundwater devastation. Development as “business as usual” is triggered by some businesses—along with the incompetence and/or negligence of government institutions at the local, national, and international levels. This practice is well entwined with the term mobility. When businesses know that they can operate in any place in world—and easily move around— they do not mature any connection to the land, water, environment or the people where they are carrying out their economic activity (Hoekstra and Chapagain 2008). Thus, they tend to treat natural resources and people only as short-term commodities. Typically, the larger a company gets (e.g., multinational corporations) the weaker these connections become. It is pivotal to bring to the discussion of development as business as usual questions of equity and sustainability. Rethinking development is likely to entail challenges to the powers-that-be: it would require empowering those whose voices—the economically marginal and the environment—have so far been neglected or ignored, and redistribute rights, incomes and resources, including groundwater, to those same actors. The cases of Guácimo and Santa Cruz clearly illustrate how countries in the Global South continue to face a lot of challenges mainly due to how development is conceived, i.e., as business as usual. Development as business as usual and its intrinsically focus on the growth of GDP is premised on the exploitation (depletion, pollution) of natural resources and the cheap labour of poor people (Zwarteveen and Boelens 2014; Zwarteveen et al. 2021). Therefore, there is the urgent need of rethink and modify concepts such as GDP as they are not up to the task of measuring what really matters for equity (e.g., redistribution of wealth) and sustainability (preservation of the resources) (Raworth 2012).

9.3 The ‘Outlier’s’ Practices of the Case Studies In one of the case studies of this book, it becomes clear that even a groundwater practice generally considered positive, i.e., reducing extraction, can be dangerous in certain circumstances. Delft illustrates an atypical situation where the practice of reducing extractions of groundwater resources can lead to negative impacts such as flooding and/or land subsidence. It can happen when a continued practice of extraction for over 90 years has been managed until completely alter the groundwater levels of an entire city, lowering groundwater levels to a new, artificial normal. Therefore, reductions in pumping can lead there to hazardous situations.

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It is evident that radically decreasing groundwater pumping can be included in the broad concept/idea of development as business as usual. The company, DSM Gist, knew that they had influenced and manipulated groundwater levels—as they excessively used groundwater resources for many years for their economic activity— and due to that, several problems could arise. Despite this, it was decided, even by a court, that the company legal responsibilities were minimal, and after only five years they could stop the pumping and ‘forget’ about the groundwater conundrum of Delft. However, the people in Delft and the municipality of Delft still need to worry about it. Noteworthy is to say that business as usual and its detachment from land, water, environment, and people also occurs in developed, rich, democratic countries of the Global North, like the Netherlands, even though many would think that it is a problem mostly affecting countries in the Global South. Another important reflection of the outlier’s practices regarding groundwater use in the case study of Delft is that, even though so far there have been no tangible problems, there are many people, especially homeowners, actively involved in groundwater governance, due to shared concerns about possible flooding and/or damage to their properties or public spaces. This is considerably different from what was found in South West, where the lack of an impending crisis seems to have prevented raising concerns and people’s participation in groundwater issues—even though groundwater resources are experiencing serious deterioration problems. It seems that the main difference is that, the threat of a direct impact on the individual properties in Delft concerns more than a possible problem of access and distribution of water in the South West, which is a place where normally such provisions have not been contested yet. It also seems that the difference between the responses in Delft and in South West were due to legal responsibilities. The 2009 Water Act in the Netherlands clearly establishes homeowners as responsible for damages due to flooding, whereas in South West water access and distribution is a government responsibility. It could also be a matter of experiences. Most people in Delft know about mold and flooding in cellars, whereas not many Australians in the South West region have experienced lack of water.

9.4 Groundwater Law: Differences Between Countries in the Global North and the Global South Studying, comparing, and contrasting groundwater legal and policy frameworks and practices in countries in the Global North and Global South, facilitates a more robust understanding, theorising, and thinking about groundwater law and governance. It is interesting to reflect then on the differences, but also on the similarities found. Groundwater is not only one of the most contested natural resources, but also is becoming one of the most regulated resources in the world. Curiously, and despite that there have been major efforts to improve water law, particularly regarding groundwater, many countries in the Global South still remain in an adolescent stage of

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this process (Shah 2008; Cuadrado-Quesada and Rayfuse 2020). Examples of this include Costa Rica and India. Unlike in Australia and the Netherlands where groundwater law has achieved a more holistic, harmonised and robust stage. These countries mirror what is happening in many other countries in the Global North. Formal and explicit groundwater law mechanisms are generally the result of complex processes within societies, where instruments of control and supervision promulgate dominant ideological values. These conceived values/moral orientations tend to radically change over time. At some point in time, using water without limits was a common practice, but now this idea/notion is perceived by most countries and peoples as outrageous. Currently, there is a general consensus—at least in theory— that equity, (re)distribution and sustainability are pivotal to move towards improved governance of the hidden waters. In this sense, groundwater law mechanisms in societies constitute the particular representation of order, providing an ideal model of socio-economic, political, and cultural relations (Strang 2004). Groundwater law in Australian and in the Netherlands compared with groundwater law in Costa Rica and India seem to mirror that countries in the Global North are more likely to invest economic resources and to create budgets to build stronger and more consolidated policies, laws and regulations—e.g., holistic water laws and (ground)water allocation plans—than countries in the Global South. For example, in Australia there is the 2004 Inter Government Agreement on the National Water Initiative (NWI), which acknowledges the integration of surface and groundwater, the importance of establishing sustainability and limits of extraction; and equity— through robust participation mechanisms. Similarly, in the Netherlands there is the 2009 Water Act, which provides consistent regulation, planning, participatory mechanisms and access to courts; as well as the protection and improvement of the chemical and ecological quality of surface and groundwater systems. On the other hand, in Costa Rica, although several attempts have been made to have a holistic water law (including groundwater), to date such a law does not exist. India faces a similar situation in many states, however, as discussed, Maharashtra has a modern groundwater law since 2009—which establishes important measures for groundwater protection, development, and governance—unfortunately, the rules to actually operationalise the law did not come until 2018 and are still not in force. The book’s findings show that even though countries in the Global South, such as Costa Rica and India, have been slower in designing formal groundwater laws, policies and regulations, and are often struggling because of underfunded government institutions, e.g., lack of personnel, limited training, inadequate research funding and scanty monitoring; they have also been innovating at implementing alternative ways and tools to deal with groundwater challenges. In Costa Rica, a prominent example of this are the ASADAs (Chap. 7). It is important to note that similar entities to the ASADAs operate in the entire Latin America region (FANCA 2006; Cuadrado-Quesada and Gupta 2019). Noteworthy is to contrast the ASADAs with the water boards in the Netherlands, in their early stages. Both were community and democratic authorities and large in number, over 1000 water boards in the Netherlands. Currently, in the Netherlands, the water boards are public institutions and there is a current discussion in Costa Rica

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to make the ASADAs also public entities. Many of the ASADAs are completely opposed to this idea as they want to keep their communal ‘spirit’. However, all of them would appreciate to receive technical, administrative and legal training from government institutions. Regarding India, it was also shown how local organisations—such as the panchayats—can considerably improve groundwater issues (Sangameswaran 2006). Of course, these organisations work better when they can benefit from national and/or state government funding and training. This was beautifully illustrated in the case study of Hivre Bazar (Chap. 8). Comparing and contrasting Hivre Bazar and Angas Bremer, it is interesting to highlight some similarities in their communal organisations and leadership. The panchayats were formed by the Indian Constitution. The Angas Bremer Water Management Committee (ABWMC) was first formed as a statutory figure pursuant to the 1977 Water Resources Act. However, under the current 2019 Landscape Act a new figure was legally born, the Landscape Boards, which is a government agency and no longer a community organisation. This meant the end of the statutory powers of the ABWMC, which implied a considerable decrease in funding. This has had a negative impact in the overall work of the ABWMC. Finally, it is crucial to highlight the similar lack of conversation between groundwater practices and law in countries in the Global North and the Global South. It was evident, that groundwater law, in general, do not include most of the common groundwater practices i.e., what people do and why they do what they do. Of course, there are—almost always—some exceptions. A clear exception found in this regard is that of Angas Bremer, which is explained below.

9.5 Groundwater Practices and Broader Water and Environmental Law This book’s plea of rethinking groundwater law and governance considering practices is because it is a promising way to understand, conceptualise, theorise, and explain what groundwater law and governance actually are and what matters when it comes to sustainability and equity concerns. After conducting fieldwork in six very different contexts—not only in the development of their environmental and (ground)water law but also in their political, socio-economic, cultural and environmental features including groundwater availability—and having carried-out multiple observations of groundwater practices and community meetings; and in-depth interviews with 120 people, including government officials, large-scale farmers, industries, scientists, environmentalists, social activists, marginal farmers, poor people and small-scale entrepreneurs, it is evident that law and practice are not strongly connected. Therefore, there is the need to rethink how can groundwater practices be the base/foundation of groundwater law. The findings evidence that the mandates of many groundwater policies, laws, and regulations are somewhat detached from people’s practices of use and dealing

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with groundwater. While law and policy are conceived to influence people’s daily practices (Dellapenna and Gupta 2009), comprehensive water law needs to take into account what people do on the ground, understanding why they do what they do. Only when policy-makers and law-makers have a dialogue with government officials working at the local level, large-scale farmers, scientists, environmentalists, social activists, marginal farmers, landless and the poor—and not only with industries— would be possible to improve groundwater law. This is a two-way street; people’s daily interactions also need to engage with groundwater law. To facilitate this is crucial that governments (at all levels including national and/or state and local) ensure that users are provided with the opportunity to familiarise themselves and understand the content and motivation of groundwater law. Even though, in general, there was evident detachment of the practices when developing (ground)water law, one case study illustrated the many positive effects of having the aforementioned ‘conversations’ about how practices and law are intertwined. In Angas Bremer, it was found that many groundwater practices were included in the water allocation plan (WAP). As mentioned, WAPs are key legal instruments for surface and groundwater resources in Australia. The Angas Bremer Water Management Committee (ABWMC) approached the Ministry of Water of South Australia and had a conversation with them, where groundwater users told the ministry the importance of including many of their practices e.g., individual monitoring, annual reporting of use, establishment of revegetation areas, in the legal figure of the WAP. Similarly, the Ministry of Water approached them and requested to include certain principles/goals coming from national policies like the NWI such as the limits of extraction. This case study clearly showed the positive aspects of such ‘conversations’, in order to improve groundwater law and governance.

9.6 A Reflection on Actors that Mobilise Equity and Sustainability While thinking, conceptualising and theorising about groundwater law, practices, equity and sustainability themes such as civil unrest, social movements and community organisation deserve a particular attention. People’s inconformity and frustration in many situations is turned into possibilities for readdressing inequity and environmental annihilation. These feelings push people to engage with new ‘practices’ related to groundwater which, in some cases, include meetings, organisation, and in more extreme situations even struggles for better realities, like improved access and distribution of groundwater. Such organisation and state of mind tends to transform societies along with their political and legal systems. The findings of this book show different ways in which broader practices of community organisation and civil unrest—which turned into a social movement—facilitated rethinking and reimagining sustainability and equity.

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The findings of this book demonstrate that when disruptive situations occur, people tend to find new ways to interrupt, modify, and improve ‘normality’. These transformations include rethinking development, environmental and social crises, groundwater practices, community leadership, the role of the government, the role of law, and environmental and social knowledge. For example, the case study of Guácimo illustrates a civil unrest, which eventually turned into a social movement. This case study explains how the accelerated expansion of pineapple production is causing—until now—annihilation of biodiversity and natural resources, including groundwater. It is pivotal to mention that, even though this situation is caused by private actors, i.e., pineapple companies, it is the legal responsibility of government institutions such Ministries of Environment (at the central and local levels) to prevent these atrocities. However, most government institutions (at all levels) have clearly failed in imposing proper controls on the pineapple industry. Of course, the harmful consequences have been suffered mainly by the environment, biodiversity and the local communities. Therefore, a social movement arose in the entire country, first against the pineapple plantations but then also against the negligence of government institutions. Several communities around the country—far beyond Guácimo, including communities in the North, South and the Caribbean decided that if governmental agencies were not fulfilling their obligations such as preventing groundwater pollution they would mobilise themselves. The core strategies used by this social movement are: (i) organisation: through environmental associations at the local level, and creating the National Front of Sectors Affected by the Pineapple Production (Frente Nacional de Sectores Afectados por la Expansión Piñera) at the national level; (ii) peaceful demonstrations on public streets and in front of municipalities and ministries and; (iii) water and environmental litigation (Cuadrado-Quesada 2020). Disruptive situations were an imperative factor to encourage people in the coastal communities of Santa Cruz to transform and improve their reality as well. ASADAs, through meetings and using tools such as monitoring, have managed to address some of their equity and sustainability concerns. Even though, currently, these communities experience serious problems regarding groundwater quantity, the ASADAs have worked hard to provide better water access and improve distribution in their communities. Moreover, ASADAs have done important steps towards improving sustainability in the coastal zones thanks to reforestation and the creation of protection areas of aquifers. Hivre Bazar also illustrates the possibilities of community transformation. In Hivre Bazar people’s inconformity and frustration were mobilised to transform equity and sustainability concerns. The village has worked quite hard during the past 30 years promoting better community organisation, improved access and distribution of water, and alternative economic activities, which are more environmentally respectful and socially inclusive. Faced with the absence of work alternatives, the community of Hivre Bazar reflected on other models of development that could be promoted in order to improve equity and sustainability concerns. They have gone from reflection to practice, and initiated self-managed projects of economy and solidarity exchange related to food production. For example, the production of milk and paneer (cheese) and other dairy products. These practices and initiatives procure

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economic wealth—beyond GDP measurements—to the village through narratives and storytelling of their experiences which are inspiring. However, these kinds of initiatives are limited and face innumerable challenges such as lack of investors, lack of government incentive, and limited visibility. The case study of Delft in their own particular form also shows how the community got organised and decided to address equity concerns. Despite the peculiarities of this case study, it was the people’s response to problems/crisis that mobilised community organisation. The groundwater excess problem and its possible consequences unlocked people’s involvement, organisation, and participation, which also facilitated the mobilisation of equity. For example, the people’s association of the city centre of Delft, motivated people (especially the homeowners) in Delft to participate in formal meetings with government officials when discussing the plan for scaling down the groundwater extraction at the DSM Gist site as a form to address their concerns. The community in Delft is still very worried and continue to express that if something happens to their houses due to groundwater levels they will pursue legal action against the municipality. Last but not least, in Angas Bremer it is noteworthy to mention that as groundwater became a scarce resource—back in the 1980’s—many responses, in how to deal with groundwater, emerged. In this regard, the community also created ways to readdress equity and sustainability concerns. The case study of Angas Bremer showed how the irrigators, besides changing crops from irrigated lucerne to wine-grapes, started to have local vineyards. While promoting these local vineyards, they also continue to implement practices like create revegetation areas, monitor and report groundwater use. These have helped to redistribute wealth in the community and now the irrigators have a better income and have improved sustainability. The revegetation areas helped to enlarge the area of deep-rooted, native, non-irrigated vegetation in order to improve the quality of the water-table; and the monitoring helps to encourage record keeping by irrigators.

9.7 Conclusions—A Need for a Better Relation Between Groundwater Law and Practice This chapter demonstrates that anchoring groundwater law and governance in groundwater practices increases the mobilisation of water justice, and sustainable use. As discussed in Chap. 1, this book aims to bridge the legal scholarship and the social science scholarship to enrich the discussion on how to improve the design and implementation of groundwater law and governance based on practices. This chapter provides evidence on how detached most of the water policies, laws, and regulations are from practices of using, sharing, protecting and governing groundwater. The findings exposed propose the base for a reflection to better conceptualise and theorise groundwater law and governance. As was mentioned in Chap. 1 (Sect. 1.3) for the purpose of this book, law is seen as a subset of governance. To reconceptualise

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and to retheorise groundwater law and governance, it is proposed then to encompass four main ideas (Fig. 9.1): (i)

(ii)

(iii)

(iv)

Core principles: Groundwater is a vulnerable, finite and hidden resource and needed for everything (human consumption, agriculture, farming and industry), for everyone (individuals, households, communities, agriculture and business) and forever (as long as there is an Earth as we know it). Therefore, groundwater governance and law need clear and well-defined fundamental legal principles. These are: (i) equity (involving (re)allocations, (re)distribution, sharing, recognition, and political participation); and (ii) sustainability (defining limits of extraction and restrictions of pollution). Context-specific practices: The understanding and acknowledgement of context-specific practices that are often embedded in contestation are necessary for an improved groundwater law and governance. Therefore, it is critical to understand and acknowledge groundwater practices—what it happening on the ground, why is it the way it is, who is doing what to groundwater and why. There is also the need of groundwater users to familiarise with groundwater law and the core principles governing groundwater. Government involvement: The pivotal role of the government as an ‘honest broker’ cannot be understated. It was demonstrated by all the case studies in the Global North as in the Global South that the role of the government and its institutions is not only beneficial to improved groundwater governance and ‘obedience’ of groundwater law but it is fundamental to implement different new technologies e.g., monitoring and to provide funding. Therefore, groundwater governance needs government involvement and clear budgets. ‘Dialogue’ between groundwater law and local practices: The development of groundwater law needs to take into account local practices in order to understand how to better regulate groundwater use, (re)allocation, sharing and (re)distribution. This dialogue is understood from a legal point of view as procedural justice (e.g., equal opportunity of participation in political processes). The conversation between law and local practices will then facilitate the governance of groundwater as this ‘new law’ will harness the power of social consensus or acceptability which can take the groundwater governance agenda forward.

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Fig. 9.1 The groundwater governance and law butterfly—as a way to recontextualise and retheorise groundwater governance and law. Source Author

References Alley WM (2001) Ground water and climate. Ground Water 39(2):161–178 Cuadrado-Quesada G (2020) Realizing the human right to water in Costa Rica through social movements. Utrecht Law Rev 16(2):1–14 Cuadrado-Quesada G, Gupta J (2019) Participation in groundwater governance: outlining a path to inclusive development. Water Policy 21(5):1050–1064 Cuadrado-Quesada G, Rayfuse R (2020) Towards sustainability in groundwater use: an exploration of key drivers motivating the adoption and implementation of policy and regulation. J Environ Law 32(1):111–137 Dellapenna J, Gupta J (2009) The evolution of global water law. In: Dellapenna J, Gupta J (eds) The evolution of the law and politics of water. Springer Foster S, Garduño H, Tuinhof A, Tovey C (2009) Groundwater governance. Strategic Overview Series No. 1. World Bank, Washington, DC Fresh Action Network—Central America (FANCA) (2006) Water boards in Central America, assessment of local management of water resources, a comparative study (FANCA) Gibson C, Ostrom E, Ahn T (2000) The concept of scale and the human dimensions of global change: a survey. Ecol Econ 32(2):217–239 Hoekstra AY, Chapagain AK (2008) Globalization of water: sharing the planet’s freshwater resources. Wiley-Blackwell Jarvis WT (2014) Contesting hidden water, conflict resolution for groundwater and aquifers. Earthscan Lopez-Gunn E (2003) The role of collective action in water governance, a comparative study of groundwater user associations in La Mancha aquifers in Spain. Water Int 28(3):367–378 Ostrom E (1990) Governing the commons: the evolution of institutions for collective action. Cambridge University Press

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Ostrom E (2010) Polycentric systems for coping with collective action and global environmental change. Glob Environ Chang 20(4):550–557 Raworth K (2012) A safe and 12 just space for humanity—can we live within the doughnut? Oxfam discussion paper Sangameswaran P (2006) Equity in watershed development: a case study in Western Maharashtra. Econ Polit Weekly:2157–2165 Shah T (2008) Taming the anarchy: groundwater governance in South Asia. International Water Management Institute (IWMI) Strang V (2004) The meaning of water. Berg Publishers Varady RG, van Weert F, Megdal SB, Gerlak A, Iskandar CA, House-Peters L (2013) Groundwater policy and governance, thematic paper no. 5, Groundwater governance: a global framework for country action. GEF Varady RG, Zuniga-Teran AA, Gerlak AK, Megdal SB (2016) Modes and approaches of groundwater governance: a survey of lessons learned from selected cases across the globe. Water 8:417 Wijnen M, Augeard B, Hiller B,Ward C, Huntjens P (2012) Managing the invisible: understanding and improving groundwater governance. World Bank Zwarteveen M, Boelens R (2014) Defining, researching and struggling for water justice: some conceptual building blocks for research and action. Water Int 39(2):143–158 Zwarteveen M et al (2021) Transformations to groundwater sustainability: from individual and pumps to communities and aquifers. Curr Opin Environ Sustain 49:88–97

Chapter 10

Conclusion

All things are subject to interpretation, whichever interpretation prevails at a given time is a function of power and not truth Friedrich Nietzsche

10.1 Introduction This chapter presents the core findings of the book and how the proposed reconceptualisation and retheorisation of groundwater governance and groundwater law can address existing shortcomings—by examining groundwater practices while maintaining equity and sustainability as entry points, and how can the study of groundwater practices can improve the design and implementation of groundwater law. It summarises the general arguments of the book by looking back to Chaps. 3 to 8 and provide context—specific recommendations for policy, legal and regulatory frameworks. Additionally, it also reflect on the future prospects of groundwater governance and law globally. The theoretical framework (Chap. 2) proposes planetary boundaries (Rockström et al. 2009; Steffen et al. 2015) and a safe operating space for human societies to develop and thrive (Raworth 2012), where a social and just space for humanity is established. It also takes inspiration from the principles of sustainability (Dernbach 2009; Godden 2009; Otsuki 2013; Kotzé and Du Plessis 2014; Bosselmann 2017) and equity (Chattopadhyay 1975; Fraser 2005, 2008; McIntyre 2007; Dellapenna and Gupta 2009; Joy et al. 2014; Boelens et al. 2018) as well as elements of groundwater governance (Wijnen et al. 2012; Varady et al. 2013; Villholth et al. 2018), highlighting the need to bring the notions of planetary boundaries, social boundaries, sustainability, equity and groundwater governance together. The role of groundwater law in the evolving structures of groundwater governance is also evaluated (Dellapenna and Gupta 2009) and added to the discussion. Finally, the notion of groundwater practices (Zwarteveen et al. 2017) is included. These concepts and frameworks offer the

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 G. Cuadrado-Quesada, Governing Groundwater , Water Governance - Concepts, Methods, and Practice, https://doi.org/10.1007/978-3-030-92778-3_10

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opportunity to construct a more analytical theorisation of groundwater governance and law, and to use it to suggest improvements for the future of groundwater law. After explaining these theories, ideas and concepts in detail, are introduced the case studies of: Angas Bremer and South West, in Australia; Delft, in the Netherlands; Guácimo and the coastal communities of Santa Cruz, in Costa Rica; and Hivre Bazar, in India. Chaps. 3–8 analyse practices of the invisible water, as well as groundwater legal, policy and regulatory mechanisms. These chapters examine groundwater law and governance considering quality and quantity problems, tropical and semi-arid climates, different levels of community engagement, diverse intensity of climate change effects, varied government responses—at different levels—and commitments, and a range of possible ways to address pressing groundwater problems. This book does not argue or suggest that the case studies analysed in it are the sole truth of what happens in groundwater law and governance, in countries in the Global North and the Global South, not even in Australia, the Netherlands, Costa Rica and India. However, it presents a pluralistic approach to groundwater law and groundwater governance in these and similar countries/contexts. Chapter 9 reflects on specific findings related to the common practices of groundwater and how they can help with a reconceptualisation and rethinking of groundwater law and governance. It also discussed how groundwater law can be benefitted from engaging with local practices. Therefore, this final chapter draws the books’ findings together to provide some broader reflections and suggestions for both reconceptualisation and retheorisation of groundwater law and governance based on detailed descriptions of practices and suggestions to improve the future design and implementation of groundwater law.

10.2 Conditions that Mobilise Groundwater Practices that Should be Considered in the Future Design of Groundwater Law 10.2.1 Groundwater Local Problems/Crises Local context is fundamental to understanding what and how rules related to groundwater and its use are made and implemented in a particular place; this includes particularities regarding social, economic, environmental, cultural—and even religious practices (Sangameswaran 2006). Economic activities such as agriculture, for example, affect how groundwater is used in a given location. Moving from groundwater intensive crops to those that use less groundwater can avoid the overexploitation that occurs when groundwater is being extracted faster than it can recharge. Increased groundwater accessibility through groundwater saving can have a long-term effect; moreover, preventing overexploitation means that more unused, recharged groundwater is accessible and thus available to a greater number of people.

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As showed in the Angas Bremer, Delft, Guácimo, coastal communities of Santa Cruz and Hivre Bazar case studies, when there are serious groundwater problems, people get involved in order to tackle the situation. Crisis/chaos—in the shape of scarcity (as illustrated by Angas Bremer, Santa Cruz and Hivre Bazar), pollution (as illustrated by Guácimo) or groundwater excess (as showed by Delft)—is a powerful trigger to stimulate people to work together in governing groundwater resources. As illustrated in the South West case study, when there is no crisis there is no immediate trigger to stimulate participation or the redistribution of power. When people feel that everything is taken care of by government agencies that are performing adequately, and problems are addressed, people tend to relax and not get involved in groundwater governance. Participation by civil society groups and individuals in the South West case study was considerably less than in any of the other case studies. Even though the South West region is not currently suffering imminent groundwater problems (e.g., there is no lack of water), several government agencies foresee some in the near future, especially a decrease in surface and groundwater availability due to the impacts of climate change (CSIRO 2009; Cuadrado-Quesada and Rayfuse 2020). Often, when crisis/chaos unlocks avenues for community participation, people demand different solutions and accountability from government institutions (Cuadrado-Quesada and Gupta 2019). Moreover, under such circumstances individuals and civil society groups also tend to implement accountability mechanisms for themselves, as showed in the Angas Bremer case study with the Angas Bremer Water Management Committee (ABWMC) and in the Santa Cruz case study with the (Communal Water Boards) ASADAs. A comparison of Angas Bremer, Delft, Guácimo, Santa Cruz and Hivre Bazar indicates that chaos/crisis can facilitate people to take actions to move towards more groundwater equity and sustainability. In these cases, the crisis/chaos increased awareness, which promoted greater responsible and conscious use of the resource and thus, increased the likelihood of achieving sustainability. Although crisis tends to influence groundwater practices, it is hard to convince some users, like businesses, to change their groundwater use patterns even when a crisis appears. After reflecting on the importance of chaos/crisis as a trigger for ultimately improving groundwater governance, law, equity, and sustainability, it is essential to highlight that chaos/crisis is not an ideal factor, just an useful trigger.

10.2.2 Local Communities Knowledge and Awareness The six case studies demonstrated the importance of local learning and awareness to mobilise different groundwater practices. The cases showed that people based their practices on information, knowledge, and awareness. The information gave interested people the opportunity to learn about how groundwater resources work. Such learning also stimulated people to get involved and to demand a ‘seat at the table’ and to exercise accountability mechanisms. In the Australian and the Dutch case studies, this information sharing, learning and awareness was promoted by government agencies; in the Costa Rican and Indian case studies, it was more supported by

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communities’ initiatives and particular leaders (e.g., Popatrao Pawar in Hivre Bazar). However, in all the case studies, interviewees stated that enhancing mechanisms to provide access to information, learning, knowledge, and awareness—and with it the opportunity to participate and to demand accountability amongst civil society is still much needed (e.g., not cutting the funding in the Angas Bremer case study and the urgent need to properly fund ASADAs in the coastal communities of Santa Cruz case study). To do this, it is necessary to involve specialised government agencies as well as universities, non-governmental organisations (NGOs) and international cooperation organisations. The enhancing of information, learning, knowledge, and awareness needs to be two-fold. First, people need to understand how groundwater systems behave; this will allow them to reduce the possibilities of depletion and pollution by external substances, which in turn will promote sustainability (Lopez-Gunn 2003; Cuadrado-Quesada 2018). Second, people need information, learning, knowledge, and awareness about how to get involved and how to engage in political participation and decision-making in the governance of groundwater resources (Schlager 2007; Ross and Martinez-Santos 2010; Cuadrado-Quesada and Gupta 2019). Undoubtedly, this includes information and learning about groundwater laws, policy and regulations. Due to the complexity and high level of variability of groundwater resources, it is recommended to constantly monitor the resource and the results should be available to interested people (e.g., users) (WWAP 2012, 2020). This will ensure that unwanted situations, such as overexploitation, climate change effects, excess of groundwater, and pollution, can be noticed and counteracted through for example the design and implementation of mitigation strategies (Wijnen et al. 2012). This is crucial for achieving sustainability, as illustrated in the Angas Bremer and Hivre Bazar case studies. The results of monitoring can also be used to formulate certain regulations about how much groundwater is required in the aquifers, to guarantee its protection; it means having a sustainable yield while, at the same time, conserving groundwater-dependent ecosystems, and satisfying human and non-human species needs. As showed in the Delft case study, monitoring is also essential to know if there will be excess of groundwater that can jeopardise the safety of cities and infrastructure (e.g., houses) and required measures to prevent incidents. One crucial aspect of monitoring is that it allows to know the current state of the groundwater body including quality, quantity, uses and changes. Thus, it can support decision-making, for example, it allows restricting further groundwater allocations or permits when an aquifer is being used beyond its recharge capacity. Monitoring, as in the Delft case study, can also be used to plan groundwater extractions when there is an excess of groundwater causing problems such flooding and land subsidence. Monitoring also facilitates knowledge regarding the quality of an aquifer; for example, it can tell users when pollution has occurred. This can facilitate timely and pertinent decisions. The six case studies show the importance of monitoring; however, in the Costa Rican and Indian case studies monitoring has been very limited (Shah 2008; Arias Salguedo 2011). It seems that countries in the Global South have struggled to find budgets to implement constant and robust monitoring. Groundwater monitoring in the Australian and Dutch case studies has helped to increase the understanding of groundwater systems, while at the same time improving groundwater law (Holley,

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Gunningham and Shearing 2012; Margat and van der Gun 2013). The Angas Bremer case shows that supervision of groundwater monitoring does not have to be the sole responsibility of government agencies; if proper funding is available, organised communities’ groups can also get involved. This, in turn, facilitates information sharing, discussion, knowledge, and awareness about groundwater. The Costa Rican and Indian case studies illustrate the barriers to implement monitoring, like its high costs.

10.2.3 Connections Among Groundwater, Surface Water, and Other Natural Resources This book showed the extent to which groundwater is intertwined with surface water but also with other natural resources, like land and forest. Recognising such interconnections is important as they highlight the need to integrate surface and groundwater (conjunctive management), with other natural resources. Even though, conjunctive management is already a well-known principle of water law and governance; it is important to acknowledge in law and governance that these linkages go beyond water alone and that other natural resources and ecosystems affecting the hydrological cycle must be taken into account. The findings suggest that, when groundwater practices take into consideration connections with surface water, land, forest, biodiversity and dependent ecosystems; and links and complexities were acknowledged, governance tended to be more fruitful. As showed in the Angas Bremer case study (Chap. 3), when the irrigators found problems with groundwater quality (salinity), one of the first initiatives taken was to swap groundwater allocations for surface water allocations. This was regulated by the water allocation plan (WAP). In this way, the irrigators were able to use surface water (from the Murray River), which was not overexploited, instead of groundwater (which was) (Thomson 2008). In the case study of the South West (Chap. 4), the interconnection between surface and groundwater was revealed as climate change is causing a decrease in rainfall, which results in less surface water and ultimately affects groundwater recharge. The decline in surface water has also incentivised groundwater use, which has resulted in more people requesting groundwater allocations and thus, led to an overallocation problem. In the Delft case study (Chap. 5), the problem of excess of groundwater is linked to the interconnection between surface and groundwater. The practice of business as usual that allowed DSM Gist to pump vast amounts of groundwater for over 90 years, causing an artificially new waterlevel, can now jeopardise the safety, of the entire city of Delft. The Dutch water law (discussed in detail in Sect. 5.4) largely ignores the problem of groundwater excess. The case studies of Costa Rica illustrated a clear lack of acknowledgment in the Costa Rican water law of the interconnections among surface water, groundwater, and other natural resources, which led to poor outcomes. The findings of the Guácimo case study (Chap. 6) illustrated the interconnections among biodiversity loss, forest destruction, invasion of the springs and rivers, and polluted groundwater

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due to agrochemicals use. The coastal communities’ case study (Chap. 7) evidenced also the interconnection between destruction of forests, mangroves, biodiversity loss, and depletion of groundwater resources, which in turn caused water scarcity. The Hivre Bazar case study (Chap. 8) also illustrated interesting interconnections between surface, groundwater as well as other natural resources rules. For example, the restrictions on free grazing prevented negative impacts on the vegetation while improving the recharge of the aquifers. The same happened with the ban on tree-felling. The ban facilitated the protection of the forest while enhancing water protection and overall sustainability in Hivre Bazar.

10.2.4 Government Involvement, Support and Funding Government involvement, support and funding (or lack of) are core factors that mobilised different groundwater practices, in very different ways in each of the six case studies and therefore need to be included in the discussion of conceptualising and theorising groundwater governance and law. In the case studies of Guácimo, the coastal communities, and Hivre Bazar, the lack of adequate support and funding from government institutions resulted in marginalisation of groundwater, which end it up in a crisis. However, these case studies also illustrated interesting responses as alternatives to this lack of government support and training. In the Australian and Dutch case studies, it was clear that government support and funding was closely related to practices such as improved groundwater understanding when a problem or a crisis appeared. This is one common factor found in the countries of the Global North. The findings in the Costa Rican and Indian case studies revealed that what harmed groundwater the most was not just a lack of funding, but negligence by government institutions. This negligence included marginalisation of groundwater resources. Overall, although lack of funding was a significant problem, the main problem affecting the India and Costa Rica case studies was negligence and lack of empathy with the communities’ concerns by responsible government institutions. When public agencies have caring public employees who work to accommodate public interest and to improve quality of life in the communities (e.g., by finding innovative solutions that can be achieved with the limited funding available, as discussed in the Guácimo case study in regard to one employee of the municipality) (Sect. 6.4.3), communities are able to exercise their rights of participation and fight to readdress equity and sustainability. In the Australian and Dutch case studies, unlike in Costa Rica and India, negligence of government officials was not an evident factor hampering groundwater, which is related but not limited to having adequate funding to perform the tasks at hand. This included the existence of participatory and accountability mechanisms. In the Australian and Dutch case studies political participation in groundwater issues was linked to the ability to secure funding. This is showed by creating participatory processes, e.g., open meetings with government officials to discuss about groundwater resources, current problems, planning strategies, and future developments. In Angas Bremer, the main driver motivating irrigators to become enthusiastic

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about, and engaged with, groundwater issues was government support and funding to do research and to truly understand groundwater systems. Despite the suboptimal performance of government support and funding in Costa Rica, it was clear that where support and funding was available (even small amounts) a number of positive actions could be achieved. Remarkable examples of that are the ASADAs, which have promoted access to information (although often the information is restricted), meaningful participation in decision-making (making decisions by consensus), accountability mechanisms (dialogues and increasing transparency), monitoring (albeit limited), and aquifer protection areas, all with minimal funding and support from government institutions. Government agencies are supposed to be one of the key actors in governing groundwater—at least as rhetoric—but their capacity and performance is variable. These entities should coordinate with all other actors to come up with adequate strategies for using groundwater in an equitable and sustainable way; however, this is not happening and, as a consequence, groundwater is being overexploited, polluted, depleted (Varady et al. 2013; Villholth et al. 2018) and unevenly distributed (Zwarteveen et al. 2017; Boelens et al. 2018). Moreover, government institutions have a legal responsibility of taking care of groundwater use and distribution at different levels as in most countries in the world groundwater is a public good and needs to be regulated and protected by the government (Wijnen et al. 2012). Unfortunately, in most countries around the world such tasks continue to pose a challenge (WWAP 2016, 2020). Worldwide government institutions vary widely in capacity and size, but even more in performance, which is often tied to limited budgets. In many countries in the Global South and even in some countries in the Global North government institutions perform poorly with imprecise mandates, inadequate staff, and human capacity, limited political support or institutional authority, and inadequate budgets (Varady et al. 2013). Attention needs to be paid to how governments are setting their budgets to deal with groundwater challenges. Beyond budgets and funding, it is important to focus attention on problems such as human capacity and knowledge, staff involvement and care about people, water and ecosystems and limited political support. It is critical that governments continue to be key actors in governing the hidden waters. This to guarantee that water continues to be a public good and available in good quantity and quality to everyone.

10.3 Broader Theoretical Reflections 10.3.1 Equity at Heart of Groundwater Law and Governance Discussions This book examined different groundwater laws, policies, regulations and practices looking in particular at equity concerns. Contestation over groundwater can be manifested in many different ways, shapes and forms as demonstrated on this book. The

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conceptualisation of water equity in this book focused on the dimensions of distribution; recognition; and procedural and representational justice (Schlosberg 2004; Fraser 2005; Joy et al. 2014). In the last dimension attention is put to meaningful participation of different people with recognition, respect, and by taking into account the position of the most vulnerable groups of people in society. Chapters 4, 7 and 8 particularly illustrated social exclusion and the lack of the dimensions of distribution, recognition and procedural and representational justice. However, the findings of this book also showed how in instances of social exclusion, social struggle begins, and some rectification in the direction of equity was made. For example, in Guácimo, it was showed that after years of exclusion people started to organise and tried to transform their reality. With support of NGOs and (communitybased organisations) CBOs started to participate in political processes, e.g., meetings at the municipality with government officials and pineapple companies. However, the struggle for clean water and sustainable development still continues. In Guácimo, the core groundwater problem is water quality caused by the indiscriminate use of agrochemicals by pineapple companies. In the coastal communities of Santa Cruz and in Hivre Bazar, struggles over water quantity also continue. Regardless of their particular focus, these are essentially struggles over access and distribution of water and water-related resources. It is interesting to reflect here also on the Delft case study, where even though there have been no problems with flooding yet, it is possible that such an event occurs in the near future. Therefore, there has already been a struggle by many people in Delft over exposure to excess water. When it seems that there is no immediate groundwater problems the findings suggest that people are less inclined to concern themselves with processes of environmental/water change. This means that people are less interested in reallocations of resources, power, redistributive justice, recognition of social difference, and opportunity of participation in the political processes. This was illustrated with the South West case study. When discussing equity in groundwater law and governance, it is pertinent to reflect on people and organisations that have been behind water struggles and waterrelated organisations. It is important to pay attention to the work and innovations put forward to readdress water equity, especially in countries in the Global South, and think through what this means for groundwater law and governance conceptualisation and theorisation. It is also pertinent to recognise that countries in the Global North can learn and gain knowledge from countries in the Global South, particularly about civil society organisations and involvement in groundwater governance, examples of this are the ASADAs in Costa Rica and the panchayats in India. This book suggests that equity is always deeply contextual and relational; it is about reaching agreements about how water is or should be shared between different people, the environment and non-human species. In setting up the different distribution that is required to achieve equity, groundwater law should provide the leading framework for communities, peoples, organisations, government institutions, and businesses (national and transnational) to adhere to.

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10.3.2 Sustainability at Heart of Groundwater Law and Governance Discussions As with equity, this book focused on sustainability concerns when examining different groundwater laws, policies, regulations and practices. As defined in Chap. 2, sustainability is a goal of human activities, which should be pursued by humankind (Schrijver 2008). However, in practice, in countries in the Global North and Global South alike, it is common to encounter the term sustainability being used as a palliative concept within a neo-liberal capitalistic rhetoric (Kotzé and Du Plessis 2014), while the ruthless exploitation of natural resources, ecosystems, biodiversity and poor people continues (Patterson 1998). Furthermore, sustainability is often made sub-servant to the economic interests. Making economic growth and consumption the only focus of development in communities, cities and entire countries while neglecting concerns related to environmental protection (Godden 2009). This book revealed the complexities of addressing environmental, social, and economic concerns. For example, it exposed that private companies due to their main pursuit being profit and having such a high mobility (especially internationally) are less concerned with using groundwater resources in a sustainable manner (as illustrated with the case studies of Delft, Guácimo and Santa Cruz). However, it also showed that if and when organised community groups are involved in groundwater governance and law, sustainable use can be promoted (as exemplified with Angas Bremer and Hivre Bazar). It is relevant to highlight that in all the water/groundwater and environmental policies, laws and regulations reviewed in this book, the different countries in the Global North and Global South alike have established legal obligations to achieve sustainable use. However, even when legal responsibilities that pursue the principle of sustainability are in place, if people are not aware of the importance of implementing such principle and/or there is a lack of enforcement of such policies, laws, and regulations, problems will continue. When there is a lack of implementation and enforcement in a country, but the country has (ground)water/environmental law that embrace sustainable use of groundwater, civil society groups can find support in the law. Groundwater/water and environmental law will then be more likely respected and enforced. This will only occur if there is a social basis that demands it. It will depend on the social context what sustainable use of groundwater is, which might have different shapes and forms in different countries and in different communities, but the ideals of not depleting the resource and protecting while using it, will always be present. While civil society groups continue to defend the sustainable use of groundwater, it is important for them to be aware not only of national (ground)water and environmental policies, laws and regulations but also of the overall international agenda of sustainability. For example, Agenda 2030 and the Sustainable Development Goals (SDGs) express universal commitments to the goal of sustainable development encompassing economic, social (including human rights) and environmental elements. Agenda 2030 is innovative in that it is universally applicable, requiring all

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states, whether in the Global North or in the Global South, to implement the SDGs nationally and, when able, to contribute to international cooperation for sustainable development (Gupta and Arts 2018). This is another possibility that the sustainability discourse can offer to civil society groups to support them in their fight to improve groundwater sustainability.

10.3.3 Core Recommendations for the Future of Groundwater/Water and Environmental Law The book findings showed that countries in the Global South, such as Costa Rica and India, have been slower than countries in the Global North, such as Australia and the Netherlands, in designing groundwater/water and environmental law. However, they all have a lack of interest and understanding of local groundwater practices when designing groundwater/water and environmental law. The interviewees, in all the case studies, responded negatively to the question of do you study/research groundwater practices to understand the context where the law will be in force—before drafting groundwater laws? The most repeated answer when asked, what do you do/take into consideration/study before drafting a new groundwater or water law was the review and study of other similar water laws in other countries, where the laws are ‘working’. The overall empirical data collected for this book then suggests that most groundwater, water and environmental law is mostly developed without taking local groundwater practices and context into account. The findings of this book strongly suggested that the ‘making’ of groundwater/water and overall environmental laws should be closely related to what happens on the ground, i.e., the practices surrounding groundwater usage, sharing, and conservation initiatives. Hence, it is pivotal to make an effort at understanding and taking into consideration practices when discussing and designing the future of groundwater law. Only then, when law-makers understand and have a dialogue with all relevant actors including scientists, environmentalists, social activists, marginal farmers, landless and the poor—and not only with private companies (e.g., transnational corporations)—there would be a possibility to improve groundwater law. Of course, it is also pertinent that people (who are actively involved in groundwater governance) engage with the law. This exercise needs to be done in a critical manner when formal legal mechanisms promote injustice or unsustainable use of groundwater (and other natural resources) (Joy et al. 2014). Even though in general there was an evident detachment of the practices regarding the development of groundwater law, the Angas Bremer case study illustrated some positive effects of having a dialogue between local practices and the law. Angas Bremer shows that many groundwater practices have been included in diverse water allocation plans (WAPs) throughout the years. As explained in Chap. 3, WAPs are key regulatory instruments for water resources in Australia. The ABWMC approached the Ministry of Water of South Australia and had a dialogue, where the ABWMC

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told the Ministry they wanted to have all their groundwater practices including individual monitoring, annual reporting of use, and establishment of revegetation areas as fundamental requirements in the WAP. This case study showed positive aspects of a back and forth dialogue between practices and law, which led to improved groundwater governance.

10.4 Concluding Remarks This book identified equity and sustainability as entry points to analytically reconceptualise and retheorise groundwater law and governance. Along with these legal principles there is merit in reflecting on certain conditions or factors that permeate groundwater practices and should be considered in the future design of groundwater law, such as: (i) groundwater chaos/crises/problems; (ii) local learning and knowledge; (iii) connections among surface, groundwater, and other natural resources; and (iv) government involvement, support and funding. These conditions or factors were repeatedly found in the case studies and then used as criteria to rethink, reconceptualise and retheorise groundwater governance and law. The overall findings of this book create the foundation to reconceptualise and retheorise groundwater law and governance, based on four, criteria as follows: (i) Core legal principles: groundwater as a vulnerable, finite and hidden resource needs to be governed by well-defined legal principles. Two principles are essential to govern groundwater: equity and sustainability; (ii) Context-specific practices: local context is fundamental to understanding what and how is happening related to groundwater and its use; this includes particularities regarding social, economic, environmental, cultural and religious contexts; (iii) Government involvement: The role of the government and its institutions is crucial. Communities can organise themselves to improve groundwater governance and rules but need the government to consolidate their efforts. Government institutions are needed to provide scientific expertise, technologies e.g., monitoring and funding; (iv) Dialogue between law and practices: the development of groundwater law needs to take into account local practices. This dialogue is the way to facilitate the social acceptance that law requires to achieve its purpose. This reconceptualisation and retheorisation is summarised in the Groundwater Governance and Law Butterfly (Sect. 9.7). Further generalisable conclusions of this book are: Contrary to existing assumptions and arguments which suggest that funding is an insurmountable obstacle for countries in the Global South wanting to improve groundwater governance, lack of funding can be seen as a door that leads to diverse pathways to community practices of reduced groundwater use, improved knowledge of groundwater resources; and struggle to protect their groundwater resources. Moreover, countries in the Global North such as Australia and the Netherlands, despite having well-funded institutions, continue to face challenges such as business as usual and decreasing support and funding for water/environmental issues.

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Furthermore, from the findings of this book some recommendations are provided for each case study. A prominent recommendation of the Angas Bremer case study is for the government of South Australia to keep funding and supporting the ABWMC due to its valuable contribution to address water equity and sustainable groundwater use. Keeping the funding matched to the task at hand is vital to reduce costs to volunteers and ensure an adequate organisation and implementation process. In this context, what is needed is to explore how to create institutional mechanisms and ways of redirecting funding to support and sustain community organisations. For the South West, and in fact for the whole of WA, the recommendation is to have a broader dialogue with different groundwater users and discuss the possibility of introducing statutory surface and groundwater allocations plans in accordance with the National Water Initiative (NWI). As recommended by other legal scholars (Hartley 2014; Bennett and Gardner 2015), this will facilitate to discourage people from using groundwater in a non-sustainable way. While surface and groundwater allocation plans continue to lack statutory powers, this incentive will not exist. For the Delft case study, a recommendation is to reopen the discussion about the responsibilities of industries, e.g., DSM, in influencing and manipulating groundwater levels. Business as usual needs consequences for the damages they cause to water, land, forest, and the overall environment as well as the harm they do to people and infrastructure. So far, these consequences have been minimal. This is another subject where groundwater/water law needs to be further developed. Both of the Costa Rican case studies require more pro-active government employees who can respond to the challenges that the country faces on groundwater governance and law. This would clearly focus on providing more support and funding to the institutions responsible of surface and groundwater governance, which could be achieved through national efforts and/or international cooperation. Costa Rica also needs to have local and national government agencies focused on longterm sustainability projects instead of only considering short-term goals (e.g., the accelerated growth of pineapples and tourism because they increase the GDP). The municipality of Guácimo has shown how this can be achieved, for example, through a moratorium. However, the Constitutional Tribunal considered that the pineapple plantation owners’ rights to free trade and private property should trump measures to protect groundwater resources. Therefore, the importance of balancing the benefits flowing from free trade and private property rights with those coming from protecting groundwater resources as well as with enhancing equity and sustainability in the entire country. For the Hivre Bazar case study, it is relevant that the government—at state and national level—continues to support and fund ongoing initiatives. The Hivre Bazar story tells us how a rural community has been developing certain sustainable practices. These groundwater practices may not be the best scientifically evolved ones using sophisticated models. However, they showed that it is possible to bring in the power of social consensus that can take the groundwater governance and law agenda forward. The Hivre Bazar story also tells us that instead of waiting for the best science/knowledge/models to arrive, groundwater practices can be made ‘social norms/rules’ to make the local groundwater use more equitable and sustainable with

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the potential of further developing them in the light of new data, experience, and knowledge. A final recommendation arising from the Angas Bremer, Hivre Bazar and the two Costa Rican case studies is to foster networks and the sharing of experiences among groups such as the ABWMC, ASADAs, environmental associations and panchayats. After rethinking, reconceptualising and retheorising groundwater governance and law, there is a need to describe and understand how groundwater governance and law work in practice; what is actually happening and why is it happening. Groundwater governance and law worldwide are far from normative definitions often used to explain what groundwater governance and law are, therefore there is a misunderstanding of what is being discussed, studied, and regulated. The plea of this book is to take the description, analysis, and study of practices into consideration, when discussing groundwater governance and law obstacles, opportunities, improvements, advances as well as the future design and reforms of groundwater/water/environmental law. Final Reflections • It is worthwhile conceptualising groundwater law and governance from a practical perspective, considering what people do on the ground and why. This makes easier to understand what is the actual role of law in attaining legal principles such as equity and sustainability • When discussing groundwater access and distribution, it is important to consider the work and innovations put forward to readdress water equity—especially in countries in the Global South—and think through their meaning for groundwater governance conceptualisation and theorisation • Groundwater crisis—in different shapes and forms—can push people to start governing groundwater resources differently. Crisis tends to bring awareness of groundwater resources, and they can motivate people to take action and move towards a more sustainable manner to use groundwater • Often, due to water exclusion, a struggle begins, and some equity changes are made. These struggles—of civil society groups—are fundamental to demand equitable use of groundwater • Usually, the absence of a groundwater crisis/problem makes it difficult for people to get involved and worry about processes of environmental change, reallocations of resources, power, redistributive justice recognition of social difference, legitimacy of rights claims, and opportunity of participation in political processes • It is pertinent to recognise that rich/industrialised countries can learn from countries in the Global South, particularly about civil-society organisations and involvement in groundwater governance from de point of view of the community figure of the ASADAs, in Costa Rica, or the panchayats, in India • It is necessary to bring the idea of ‘groundwater practices’ to the making of groundwater law and policy—through participatory processes. Such instruments should be closely designed, putting attention to what is happening in the ground, like the practices surrounding groundwater usage, management, governance and conservation initiatives. This will facilitate the development and implementation of more adequate groundwater/water/environmental law and policy

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