Environmental flows elements to support water legislation MLB

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					Introduction
During the past decades an unquenchable desire to use river flows for economic developments has
turned many riverine ecosystems in over-allocated and polluted water systems. The result has been
increasing environmental degradation in many of the world's major river basins1. At this moment more
than 50% of the freshwater in the world has suffered from human intervention, and it is expected that in
the year 2025 this number will go up to 70%2. This situation uncovers the necessity to define a flow to
balance the ecological services provide by the river and maintenance of the river features, this flow is
called environmental flow3.

Environmental flows can be defined as the amount of water left in the river to continue providing the
services from the water ecosystem and maintain the integrity of the river 4 . The aim of the
environmental flow is keep as much as possible the natural flow pattern along the river so that people,
animals, and plants can continue using the river resources5. The concept has been recognized at many
international fora (such as the Brisbane Declaration of Environmental Flows which defines them as the
‘quantity, timing and quality of water flows required to sustain freshwater and estuarine ecosystems
and the human livelihood and well-being that depend on these ecosystems) and is increasingly being
introduced in national water legislations of some countries 6(Australia, Kenya, Tanzania, Japan, South
Africa, etc).

Environmental flows give significant contributions to river health, economic development and poverty
mitigation. They guarantee the continued availability of the many benefits that healthy river and
groundwater systems bring to society. It is increasingly clear that, in the mid and long term, failure to
meet environmental flow requirements have disastrous consequences as water scarcity and degradation
of aquatic ecosystems7.



1
 Swainson, R. and R. C. de Loe (2010). "The importance of context in relation to policy transfer: a case study of
environmental water allocation in Australia." Environmental Policy and Governance.
2
 Tharme, R. (2003). "A global perspective on environmental flow assessment: emerging trends in the development
and application of environmental flow methodologies for rivers." River Research and Applications 19(5-6): 397-441.
3
 Davis, R. and R. Hirji (2003). Water resources and environment technical note C. Washington, D.C., World Bank,
Environment Department.

4
 Tharme, R. (2003). "A global perspective on environmental flow assessment: emerging trends in the
development and application of environmental flow methodologies for rivers." River Research and
Applications 19(5-6): 397-441.
5
    O’Keeffe, J. and T. Le Quesne (2009). "Keeping Rivers Alive."
6
 Le Quesne, T., E. Kendy, et al. (2010). "The Implementation Challenge Taking stock of government policies to
protect and restore environmental flows,."
7
    Dyson, M., G. Bergkamp, et al. (2003). Flow - the essentials of environmental flows. Gland, IUCN.

                                                                                                            Page | 1
Numerous reports that analyze the role and assessment of the environmental flows indicate that a key
characteristic to a good environmental flows assessment is national legislation that would make viable a
water management that provides for humans being as environmental flows through regulations and
guidelines. In this context the paper center its analysis in environmental flow law making experience in
countries where they are considered by international reports as well established to identify if exist gaps
between e-flow operationalization and what it is written in water laws. The purpose of this review is to
determine which elements should have been considered in order to strength the implementation and
operationalization of e-flow concept. As a result of this analysis a list of element is extract that in
opinion of the authors could increase the implementation opportunities; afterwards this framework will
be applied to the new Peruvian water law to critically analyze the relevance and tools that this new law
is proposing to tackle operationalization of e-flows.




                                                                                                 Page | 2
Elements that support environmental flows in Water legislations to
protect ecosystem

 The paper builds up the research around the opportunities and barriers faced for water laws in the
attempt to implement environmental flows in different country context. The identification of the
opportunities and barriers were use to infer with elements should be included in the framework to lead
an effective implementation. The research method selected was literature review which was suitable for
the timeframe available of the research. For this research secondary data was consulting such as
published data, reports on environmental flows in water law, environmental flows implementation, role
water management and practice, stakeholder participation, and primary data such as national water
policies and plans.


A special attention was pay to the barriers to achieve operationalization of environmental flows. These
obstacles identified were check with the law to analyze if changes or specifications in the acts could lead
a better and more effective implementation. As a result of this analysis a list of nine elements were
obtained as relevant to have in consideration in water laws and acts to make viable the implementation
and operationalization of environmental flows. Bearing these shortcomings in mind, there is visibly
require for improving existing environmental flow acts. Although the most vital and central research gap
is that of understanding the links between e-flow and ecosystem functions, human welfare and
socioeconomic benefits, the intention of the existing research is not to solve this gap. Rather, it will build
on existing knowledge to extract lessons learnt create a guide framework which will be use to critically
analyze and assess the Peruvian water law regarding e-flows performance.

Recognition and Acknowledgment


Recognition of the importance of environmental flows

The rising concern to protect the integrity of water ecosystem has force to include in water
management environmental flows. There is no a universal agreed on environmental flows definition in
this paper we accept the definition according to the Brisbane declaration8 in which they are described as
the "quantity, timing and quality of water flows required to sustain freshwater and estuarine ecosystem
and the human's livelihood, and well being that depends on these ecosystems". Environmental flow
acknowledgment varies from country to country in South Africa the Water Act (DWAF 1998) coined the
term Reserve which stands for human and environmental requirements for present and future
generations in Australia the National Water Initiative (NWI) and the Council of Australian Governments
recognize environmental flows as legitimate water users9; Moreover in Italy the environmental flows are

8
 (2007). "The Brisbane Declaration." Water : official journal of the Australian Water and Wastewater Association.
34(8): 34-35.
9
 Hirji, R. and R. Davis (2009). Environmental flows in water resources policies, plans, and projects : findings and
recommendations. Washington, D.C., World Bank.

                                                                                                             Page | 3
considered as framework law and they stand as minimum in stream flows to be present downstream of
water diversions10. These three countries are considered by Moore in the group of countries in which e-
flows work is well established. The diverse approach that these three countries have is an example of
how new of e-flows concept is an indicative that has not been understood completely.

Since Brisbane declaration, countries around the world started to modify the national policies together
with legislation to recognize environmental flows(Dyson, Bergkamp et al. 2003). According to
Flows(2003) the first step to increase feasibility of e-flows is to acknowledge their existence and socio-
economic relevance in an integrative water management. Countries such as South Africa and Tanzania
recognize environment water as any other consumptive use, as any other use is subject to prioritization
to guarantee their allocation these two countries also give first priority in use to them. Other countries
such as Australia and Kenya agree with e-flows recognition although they don't assign first priority to
environment water because state that prioritization is difficult to put in practice (Hirji and Davis 2009).
This two different positions among the historical pioneers on e-flows recognition show that there are
many alternatives to protect environment water as long the main principle to secure water for humans
and environment for present and future generations remain as the frame of the water management.
Now some criticism has risen since integrative water management has to secure water for environment
as for humans, for example some villagers in South Africa perceive the e-flows as water for fish (Van
Koppen, Jha et al. 2002) which is a common misperception. To avoid this Hirji and Davis (2009)
recommend to make evident the link between environment conservation to health improvement and
social benefits. Reports from the World Bank and IUCN (2003) indicate that clear identification of the
benefits from secure environment water stimulate the participation and compromise of the people
specially villagers and small farmers.

Social and Cultural Aspects

Stakeholder participation mechanism

Participation is a largely an information - dissemination exercise among government departments and
implementing agencies with the opportunity to comment (Acreman and Ferguson 2010). It generates
trust and empowerment among stakeholders and creates respect and support for the decision-making
process11. While stakeholder participation can help generate networks of water arrangements, bringing
dynamism as well as publicity to the water sector(Dyson, Bergkamp et al. 2003); this needs to be
tailored to fit stakeholder capacities (Le Quesne, Kendy et al. 2010). In e-flows assessment stakeholder
involvement is essential at every stage (regulating, planning, implementing) in order to design objectives
and scenarios around stakeholder requirements12. As such stakeholder involvement needs to be a
required by water Laws at what extent, and at which stage depends on the socio-political context of
each country and the existing capacities (understanding, funding, and technology). This last
10
   Stefano Maran, Environmental Flows and Integrated Water Resource Management: the Vomano River case
study
11
   Iza, A. O. and R. Stein (2009). Rule : reforming water governance. Gland, Switzerland, The World Conservation
Union IUCN Water Nature, Initiative


12
  King, J. and C. Brown (2010). "Integrated basin flow assessments: concepts and method development in Africa
and South east Asia." Freshwater Biology 55(1): 127-146.

                                                                                                          Page | 4
consideration is especially important because sometimes stakeholder participation can turn into an
impediment to the implementation13. An example of this had been observed in the South African Water
Act implementation which sometimes was delayed because participation hearings didn't match small
emerging farmer's capacities creating difficulties understanding concept such as Reserve, licensing,
relocation and over-allocation 14 . Particularly in the South African Water Act could be add that
participation is required at every stage of water management decision resulting which would be
consider a trigger to contribute in slowing down implementation15. On the other hand, Tanzania water
policy doesn't require explicit stakeholder's involvement and had achieved the formalization of nine
rivers and a lake basin organization16 and several environmental flow initiatives are under way or have
advanced in anticipation of (river basin) water resources management plans17


Institutional Arrangement

Institutional arrangements need to set understandable requirements for efficient and transparent
institutions and rules for water allocation (Le Quesne, Kendy et al. 2010).
A strengthen legal and institutional framework increase the capacity of water governance, which could
support an effective water management to provide water for human being and environment (Dyson,
Bergkamp et al. 2003). Therefore a clear set of responsibilities, regulations, acts are needed to impulse
an implementation of e-flows. Even though institutional arrangement set ups are being generally
described by different authors (Le Quesne, Hirji, King and Brown, Iza) what we can state that clear
responsibilities, task and roles are required to support an effective e-flows implementation.
For example in Kenya’s water legislation a clear institutional reform was set to facilitate effective
implementation this included the creation of an independent Water Resources Management Authority
at national level and the establishment of six Catchment Area Advisory Committees, at a regional level
18
  .. A strong institutional arrangement is not only meant to implement environmental flows but also to
achieve an integrative water management.

In addition, Hirji 19 suggests that an independent authority should be in place to measure the
performance of the environmental flows arrangement. This brings a sense of fairness and transparency
in the process(Davis and Hirji 2003).

13
  Hirji, R. and R. Davis (2009). Environmental flows in water resources policies, plans, and projects : findings and
recommendations. Washington, D.C., World Bank.
14
     Ibid.
15
     Ibid.
16
     Ibid.
17
     Ibid.
1818
   Le Quesne, T., E. Kendy, et al. (2010). "The Implementation Challenge Taking stock of government policies to
protect and restore environmental flows,."
19
  Hirji, R. and R. Davis (2009). Environmental flows in water resources policies, plans, and projects : findings and
recommendations. Washington, D.C., World Bank.
                                                                                                             Page | 5
Environmental Water Mechanism

Set of environmental quality objectives

The environmental quality objectives are quantifiable criteria to be applied for monitoring the
accomplishment of the implementation of environmental flows and may relay to the quality and
quantity of water, the habitat and the biota. For example, environmental quality objectives for a river
site may be that the river should stay sediment free and that a particular species composition be as in
the natural state (Dickens 2011). Carefully setting environmental quality objectives could facilitate the
monitoring activities because would narrow the criteria of which elements asses in order to verify the
achievement of the e-flows, if with less elements is possible to evaluate the state of the river less cost
would be required, which can be the difference between failure or success implementing e-flows.
Examples of provision to set environmental quality objectives can be found in the European Water
Framework(WFD) as Acreman(2010) stated that the WFD is thus a specific approach to setting
objectives for river restoration in which the focus is on ecological outcomes. The European Framework
Directive focuses only one environmental objective "good ecological status" for all its water bodies. In
cases like South African Water Law (DWAF 1998) and Water Resources Management Act of 2009 is
necessary first to establish a national classification system to then set the environmental quality
objective for every water body to facilitate the management and monitoring of water resources. On the
other hand the Australian and Florida water frameworks don't set classification system or environmental
quality objectives at national level instead the environmental objectives are set at basin level according
to water allocation plans and local, national and international environmental quality objectives20.

Licensing

The licensing process has as an end to register the number users and types of uses. The objectives to
register thought licenses are to: manage and control water resources for planning and management,
protect water resources of over-use, ensure fair distribution among users (DWAF 1998). The existent or
new licenses need to support the desired configuration of protect environmental flows in order to
operationalize them. Some examples of new types of licenses had been tried by the Water European
Framework Directive: time limited and license trading (Acreman and Ferguson 2010). In the case of time
limited license currently the WFD grant a license for a period of 12 years, finalized the granting period
the license is revaluated and the in the license trading is a way to exchange water rights in times of
drought and if water right holder wants. According to Le Quesne (2010) licenses need to be link with
water availability (surface and groundwater) and support by water balance models these requirements
would contribute to the basin planning water management process.

The acceptance of new types of license and regulation for water abstractions in favor of environment
water is one of the most difficult challenges of the environmental flows implementation21. Because of
most of the river are already over-allocated (Tharme 2003) and once over-allocation is achieved it is


20
     Ibid.
                                                                                                             Formatted: Spanish (Peru)
21
     Le Quesne, T., E. Kendy, et al. "The Implementation Challenge."                                         Field Code Changed
                                                                                                             Formatted: Spanish (Peru)
                                                                                                 Page | 6
difficult and political unpopular to recover the water for the environment22. Recover water in over-
abstracted river remains as number one obstacle in the e-flows implementation Alternatives to deal
with over-allocation are incentives to buy existent water uses and water markets to trade water
rights(Le Quesne, Kendy et al. 2010).


Data Assessment

Environmental flow assessment methods

There are more than 200 existing methods for determining an environmental flow (Tharme 2003). Look-
up tables and desk-top analysis for environmental flow assessment are used in scoping studies, national
audits or river basin planning(Le Quesne, Kendy et al. 2010). Functional analysis and habitat modeling
are the most widely applied approaches in impact assessment or restoration planning for single or
multiple stretches of a river(Davis and Hirji 2003). These assessment methodologies can contribute to
setting management rules and monitoring their impact on river health23.

The majority of the countries that include environmental flows in their law require the "best available
science" to assess them24. In the case of Australia, the Council of Australian Government and National
Water Initiative (NWI) required as a national principle to use the best available science to assess the
environmental flow requirements (Hirji and Davis 2009) The methods in Australia are centered in the
use of panel experts such as the Expert Panel Assessment Method and more sophisticated have
emerged like the Flow Restoration Method (Marchand and Wegen 2003)

On the other hand in South African Water Act (DWAF 1998) there is no mention about the "best
available science to determine environmental flows". However the Department of Water and Forestry
affairs (DWAF) was the first to adopt a hierarchy of methods varying in complexity to assess e-flows.
Developing 4 levels (desktop, rapid, intermediate, or comprehensive) currently in South Africa the
number of assessment method to determine environmental flow is enormous being almost 90 different
methods have been developed in South Africa since the Water Act of 1998 (Dickens 2007) being the
Building Block Methodology (BBM) the most important contribution in terms of holistic methods which
is one of two methods that are routinely applied to determine the e-flows and which is support with a
manual(Marchand and Wegen 2003).

As experience shows include the premise best available science in water laws or not has the same result
exceptional approaches according to the requirements of countries But which defined as best available
science from a develop country to may vary to a developing country and therefore the "best available
science" requirement might lead to a lot of debate. Being convenient define that the priority of the


22
  Hirji, R. and R. Davis (2009). Environmental flows in water resources policies, plans, and projects : findings and
recommendations. Washington, D.C., World Bank.
23
     Dyson, M., G. Bergkamp, et al. (2003). Flow - the essentials of environmental flows. Gland, IUCN.
24
  Hirji, R. and R. Davis (2009). Environmental flows in water resources policies, plans, and projects : findings and
recommendations. Washington, D.C., World Bank.

                                                                                                             Page | 7
method established would be to determine e-flows according environmental, social and economic
benefits in order to search for the best fit.


Monitoring Mechanism

Monitoring mechanism enables to control the delivery of environmental flows in the river and
demonstrate their contribution to ecological, social and economic benefits, to increase knowledge in
order to refine e-flows (Dickens 2011) . The monitoring provisions should include accessibility of
information, frequency of monitoring activities and the responsible authority (Le Quesne, Kendy et al.
2010). Monitoring programs should therefore include hydrological data (historical series, discharge),
hydraulic features (river depth, vegetation) as well as environmental outcomes (aquatic ecosystem,
environmental services)25.
Davis26 found that monitoring considerations in water laws are particular important given the general
poor understanding of the links between flows and ecological responses. In addition, King and Brown27
stated that monitoring programs in water laws will test the efficacy of the environmental flows release
and will help to determine if adjustments are necessary, to meet ecological and social targets. If
monitoring is not prescribed in water law there is no certainty to how e-flows would be measure, you
cannot manage what don't measure.

Examples of monitoring provision can be found in the South African Water Act of 1998 which requires
the monitoring system to collect information on: water quantity and quality, water resources use,
rehabilitation of water resources, compliance with the quality objectives, health conditions of aquatic
ecosystem and atmospheric conditions that may affect water resources28. And the Tanzanian water
policy which contemplate trans-boundary, reserve and environmental quality objectives monitoring.


Reinforcement mechanism to support the environmental flows

Enforcement, which is needed when voluntary compliance fails, fosters security amongst stakeholders
(Hirji and Davis 2009). The State may use police action to assure compliance with a specific law or act29.




25
     Ibid.
26
  Davis, R. and R. Hirji (2003). Water resources and environment technical note C. Washington, D.C., World Bank,
Environment Department.
27
  King, J. and C. Brown (2010). "Integrated basin flow assessments: concepts and method development in Africa
and South east Asia." Freshwater Biology 55(1): 127-146.
28
     DWAF (1998). The National Water Act. Pretoria, Department of Water Affairs and Forestry.
29
 Iza, A. O. and R. Stein (2009). Rule : reforming water governance. Gland, Switzerland, The World Conservation
Union IUCN Water Nature, Initiative


                                                                                                        Page | 8
Therefore water law should include provision to reinforce, e.g. sanction and penalties in case that
environmental flows implementation activities are not applied this could force the implementation
instead if there are no consequence for no protect the e-flows (e.g. penalties, sanctions, or monetary
fees) how water agencies would persuade pre-existing behaviors and consider river health, vegetation,
sediments, etc.


Economic Aspect

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

According to Dyson (2003) environmental flows will be accepted when the change in flow regime proves
to improve markets in social, environmental and economic conditions or instead will exacerbate social
inequities. This premise make e-flows a constant fight between the status quo of over-exploitation or
doing it what is right for environment. In addition Le Quesne30 states a general notion that the
establishment of sustainable financial mechanisms is required to effectively implement e-flows. But a
clear definition of what is sustainable is not specific. From our experience it can be said that financial
mechanism for e-flow should be cost-recovery as any other project in order to guarantee e-flows
implementation. The financial mechanism should enable the research, assessment, monitoring and
enforcement of environmental flows as all of these activities cost money. To recover the costs different
forms of financial mechanism exist e.g. market trade, charges, taxation, fees.

Environmental flows implementation should also lead to re-allocation of water from current uses and
users to environment through monetary incentives from government to users to trade their water
entitlements31. Only in the last decade the possibilities of using water markets to transfer water
temporarily or permanently begun to be used32. Trading of water from one use to another is not a
universal phenomenon, but formal and informal markets exist in a number of countries, including
Mexico, India, Pakistan, Chile, the USA and Australia33. In the case of Australia large quantities of water
for environment were bought but until now an active trade market has not been achieved34.




30
     Le Quesne, T., E. Kendy, et al. "The Implementation Challenge."
31
  Hirji, R. and R. Davis (2009). Environmental flows in water resources policies, plans, and projects : findings and
recommendations. Washington, D.C., World Bank.
32
     Dyson, M., G. Bergkamp, et al. (2003). Flow - the essentials of environmental flows. Gland, IUCN.
33
  Le Quesne, T., E. Kendy, et al. (2010). "The Implementation Challenge Taking stock of government policies to
protect and restore environmental flows,."
34
  Hirji, R. and R. Davis (2009). Environmental flows in water resources policies, plans, and projects : findings and
recommendations. Washington, D.C., World Bank.

                                                                                                             Page | 9
To visualize the framework to effective implement environmental flows in water laws a set of
classification was made to cluster the elements found through the literature review. Fig 1, shows the
cluster and the nine elements, the order in which their arrange has been influenced by how much strong
the elements were presented in the literature review.




         Recognition and   Social and Cultural    Environmental
                                                                    Data Assesment   Economic Aspect
         Acknowledgment         Aspects          Water Mechanism



                                                                     Environmental
                                                                          flows
                              Stakeholders         Set of Quality    Methodology
                              participation         Objectives
          Inclusion and
          recognition of
                the                                                 Environmental
                                                                        Flows            Financial
          environmental                                                                 Mechanism
          flows in water                                             Monitoirng
               laws
                                                      License:
                               Institutional
                                                     Allocation
                              Arrangements
                                                    Reallocation     Reinforcement




                                                                                            Page | 10
Environmental Flows in the new water law of Peru 2009
Peru general water policy reform was driven by the need to update the general Water Law of 1969. The
water law of 1969 was based on the management of the quantity regardless the quality and the
environment degradation. It did not recognize the economic value of the resource and did not recognize
as administrate unit the basin. In addition to this driver, the necessity to decentralize the water
management (participation of users, national regional and local government in the decisions process)
influences the necessity to complete reform the water law. Previously, the institutional arrangement of
the Water Law of 1969 was chaotic; the Ministry of Agriculture was in charge of granting all water
permits. Due to this the Ministry was centered on agricultural uses, the consequence was the
marginalization and no recognition of the private and non-agricultural users. Furthermore, international
agreements also had driven the water policy reforms such as UN Conference on the Environment
(Stockholm), UN Water Conference in Mar del Plata, Dublin Principles 1992, Rio Declaration and Agenda
21, and World Summit on Sustainable Development. All these elements influence that the Peruvian
government changed the water law considering an integrated water management and water for the
environment requirements.

The new Peru water law enacted in 2009 has as main objective to regulate water uses, water resources
management, and the performance of the government and all the parties involved in the water
management process. In which the environmental flows are recognized as the volume of water that
have to be maintain in water course to protect or conserve water ecosystems, landscape aesthetics and
other aspects of scientific and cultural interest. The water law35 is accompanied by a strategy plan36
which includes guidelines, strategies and instruments to guide the actions to have a better water use in
Peru in the short, medium and long term, in accordance with the Environment General Law of 1995. The
strategy plan is a theoretical instrument in which the objectives of the nation are defined in order to
ensure a sustainable water use. Regarding the activities to set environmental flows the strategy plan
defines the follow ones: Set the environmental flows specifically for each region of Peru, considering the
geographic area, project and context of the river basin; constant assessment of the environmental flows
in the river; regulation of sustainable water use; promotion the efficient water use; protection of the
ecosystem and establishment of a program to monitor water bodies status. This plan expects an
environmental flows implementation between the years 2011-2016 in 5 pilot basins37 follow by a
complete implementation in the rest of the country at the year 2020.


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


The environmental flows are defined in the Peru water law38 as the "volume of water that has to be
maintained in the river to conserve water ecosystems, landscape aesthetics and other aspects of

35
     MINAG (2009). Water Law Lima. Lima, Ministry of Agriculture-National Water Authority.
36
     MINAG (2009). Policy and National Strategy of the Water Resources in Perú. Lima.
37
     Ibid.
38
     MINAG (2009). Water Law Lima. Lima, Ministry of Agriculture-National Water Authority.
                                                                                                Page | 11
scientific and cultural interest”. The environmental flows need to remain in the river and can't be used
under any circumstance for consumptive uses. However the prioritization doesn't include the
environmental flows as a user. First priority is given to supply basic needs as cooking and bathing
extracting directly from the source without infrastructure, second is for domestic use (water distributed
by pipelines) and third is for productive water uses (agriculture, aquaculture, hydropower, industrial,
health, mining, recreational, tourist and transport). The water law doesn't rank the environmental flows
in the prioritization list the water law is unclear to protect the e-flows. The Peruvian water law
recognizes environmental flows as a tool to conserve water ecosystem, but they are isolate in the law.
There is no clear relationship between water for environment and social and economic benefits but
doesn't make clear a link between river health and social benefits. This is relevant according to the
framework to achieve an efficient implementation. As the link to the delivery of goods and services for
the people is missing the recognition of the environmental flow concept is weak (Castillo39).

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

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

The license process is adequately identified in the Peruvian Water Law as it is conditional to the
environmental flows protection. An element that could be introduced to enhance implementation in
over-allocated basins is the recognition of the potential of trading water.

 Environmental flow assessment methodology
The law doesn't require "best available science" to assess the environmental flows but requires the
responsible authorities (National Water Authority (ANA) and the Ministry of Environment) to assess the
environmental. According to the developed framework this is a requisite to enforce that the best
expertise and knowledge would be used to develop the assessment. To improve the effectiveness of
implementation the Peruvian government should consider including as requisite the best available
science to guarantee a continued evolution of the assessment methods.

Monitoring Mechanism
The law prescribes monitoring, control and surveillance actions to ensure conservation of water sources,
goods and services related to them and sustainable use. A monitoring program is not defined so no
inclusion of monitoring frequency, monitoring parameters or monitoring objectives relating to


39
     Castillo, L. (2009). "Nueva ley de aguas que no convence." Páginas 34(214): 15-21.

                                                                                                 Page | 12
environmental flows. As such the effectiveness of the water law to protect the ecosystem cannot be
analyzed, supported by data nor enforced. The risk of degrading the river will still be present.
The Peruvian water law should include details to the monitoring, control and surveillance actions with at
least include hydrological data as well as environmental outcomes. As such river depth, vegetation,
aquatic ecosystem quantity, discharges, etc.

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

The law has included some financial mechanism to fund water plans and monitoring programs but does
not recognize the cost and benefits of implement environmental flows or water markets to trade water
for the environment. This lack of financial mechanism to promote the environmental flows creates
uncertainty if the funds to assess, control and enforce will be put in place to guarantee an effective
implementation of environmental flows. This makes necessary that the law include financial mechanism
to enable research, assessment, monitoring and enforcement of environmental flows.

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

Institutional Arrangement
The institutional arrangement in Peru is constituted by a new main national authority the National
Water Authority. Additionally, a Water Management Authorities for each of the fourteen hydrological
areas, seventy three Local Water Authorities spread in the country. They depend economically from the
Ministry of Agriculture which creates doubts regarding political and economical interest in the water
management decisions.
The authority responsible to implement the environmental flows is not defined. The protection of the
water quality is a shared responsibility between the National Water Authority, the Water Management
Authority and the Local Water Authority.
There is also no consideration of involvement of an independent authority to assess implementation
performance. In Peru this is especially recommended having as the ministry in charge of the water
management and therefore environmental flows at the Ministry of Agriculture which is one of the major
users40.

The water law does not provide clear division of functions and responsibilities and the inclusion of an
independent authority to assess the level of achievement of the environmental flows implementation.
In order to increase the effectiveness clear mandate regarding the authority to control the
environmental flows and the possibility to have an oversight authority should need to be included in the
water law.

Conclusion
Solely inclusion in water laws doesn't ensure successful implementation of environmental flows, but
legal recognition is a prerequisite41. Based on an extensive literature review nine elements were found

40
     MINAG (2009). Policy and National Strategy of the Water Resources in Perú. Lima.
41
     Dyson, M., G. Bergkamp, et al. (2003). Flow - the essentials of environmental flows. Gland, IUCN.
                                                                                                         Page | 13
that need to be prescribed in a Water Law to effectively protect the ecosystem through the concept of
environmental flows.


       Recognition of the importance of environmental flows to protect river health and to guaranty
        the continuity of human benefits; this element tries to identify how the law defines the
        environmental flows and if their importance is emphasized with prioritization.
       Set environmental flow objectives; this provision tries to identify if classification system or
        quality objective to manage the resources have been included in the laws.
       Environmental flow assessment methodology, regarding the environmental flows assessment
        the laws should consider to request for the best available science in order to guarantee a high
        level of understanding of the problem.
       Licensing process, this provision should operationalize the environmental flows, allowing that
        only uses that no affect the integrity of the environmental flows could get a license.
       Monitoring Mechanism, activities require by law to control, assess, and identify if the
        environmental flows are being delivered and if the social benefits have been achieved.
       Financial mechanism to invest in capacity and research of environmental flows assessment
       Stakeholder participation mechanism; this element requires to involve the stakeholders to
        promote a fair process, including their requirements while setting the environmental flows
        requirements.
       Institutional Arrangement, this element require that clear mandate should need to be establish
        in the law; avoiding overlapping and including the intervention of an oversight authority to
        measure performance.
       Reinforcement activities, this element tries to identify in the law provisions to force compliance
        such as sanctions, penalties and charges.

The key elements identified in this framework will not only ensure environmental flows implementation
but also be of value for integrated water management where clear management and responsibilities are
required.
The new Peruvian water law recognizes the concept of environmental flow, but omits most of the other
elements. Repeat the elements present and missing. The recognition of environmental flows in the Peru
water legislation might be one of the most remarkable features that this one has because in the
previously water law of 1969 water quantity was the only aspect considered as important in the water
management.       However, as a recently enacted law (2009) and considering the current level of
understanding regarding environmental flows in the scientific community, this law misses almost
essential elements making it unlikely that protection of the ecosystem will be guaranteed.



(2007). "The Brisbane Declaration." Water : official journal of the Australian Water and Wastewater
Association. 34(8): 34-35.


          , Forslund, A. (2010). How are environmental flows adapted and reflected in global, regional and national
policy frameworks. What are the demands from a policy perspective and how can science deliver what is needed?,
Swedish Water House (SWH) and World Wide Fund for Nature (WWF), Sweden.

                                                                                                         Page | 14
Acreman, M. and A. Ferguson (2010). "Environmental flows and the European water framework
directive." Freshwater Biology 55(1): 32-48.

Castillo, L. (2009). "Nueva ley de aguas que no convence." Páginas 34(214): 15-21.

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

Dickens, C. (2007). Obstacles to the implementation of environmental flows.

Dickens, C. (2011). Critical analysis of environmental flow assessments of selected rivers in Tanzania and
Kenya. Nairobi, Kenya: IUCN ESARO office and Scottsville, South Africa.

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

Dyson, M., G. Bergkamp, et al. (2003). Flow - the essentials of environmental flows. Gland, IUCN.

Forslund, A. (2010). How are environmental flows adapted and reflected in global, regional and national
policy frameworks. What are the demands from a policy perspective and how can science deliver what is
needed?, Swedish Water House (SWH) and World Wide Fund for Nature (WWF), Sweden.

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

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


King, J. and C. Brown (2010). "Integrated basin flow assessments: concepts and method development in
Africa and South east Asia." Freshwater Biology 55(1): 127-146.

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

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

Marchand, M. and M. v. d. Wegen (2003). Environmental flow requirements : an integrated approach
for river and coastal zone management. Delft,.

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

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

O’Keeffe, J. and T. Le Quesne (2009). "Keeping Rivers Alive."

Swainson, R. and R. C. de Loe (2010). "The importance of context in relation to policy transfer: a case
study of environmental water allocation in Australia." Environmental Policy and Governance.
                                                                                             Page | 15
Tharme, R. (2003). "A global perspective on environmental flow assessment: emerging trends in the
development and application of environmental flow methodologies for rivers." River Research and
Applications 19(5-6): 397-441.

Van Koppen, B., N. Jha, et al. (2002). "Redressing racial inequities through water law in South Africa:
Revisiting old contradictions." Comprehensive Assessment Research Paper no 3.




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