"Allocating" water as used in this Chapter is the function of assigning water from a given source to a given user or number of users for abstracting it and applying it to a given use. As such, an act of allocation postulates (a) a person or governmental authority who allocates water and (b) a person - be it a physical individual or a corporation or a government agency - who abstracts and uses the water allocated to him/it. This definition reflects a fairly typical situation nowadays where the allocation of water is in the hands of a governmental (or para-governmental) authority or agent, whether this be a judge sitting in court and adjudicating water rights disputes, or a government water administrator empowered to grant permits, licences or the like legal titles to abstract and use water. In this situation, the fundamental decision as to who should abstract and use water, and to what use that water should be applied rests with a judge or a government administrator - i.e. with what we could conveniently term a "public authority".
This statement captures perhaps the truth about water allocation in a vast majority of cases in a vast majority of countries the world over. However, there are water allocation decisions which do not fall in this pattern. All decisions concerning the abstraction and use of water resources which legally "belong" to an individual or a corporation are for him or it to make, with no or limited interference from the government. These - which we can call "user-controlled" allocation decisions - are governed by rules of neighbourliness between adjoining landholdings, and by specific bodies of rules known, respectively, as "riparianism" and "prior appropriation". These rules have developed essentially from the practice of the courts in resolving disputes between neighbouring landholders/water users, and are administered mostly by the courts via litigation. These court-developed and -administered rules of "water law" are sometimes available in the form of legislation - or in what are also styled "Water Codes". "User-controlled" allocation decisions represent an ever shrinking minority of water allocation decisions overall. This is a direct consequence of the increasing scope of governmental authority in this field in response to the growing complexity of water resources management to satisfy all of society's demands, which complexity reflects the increasing interdependence of water quantity-related and water quality-related factors, and the intense interface between water and other environmental resources. The growing scope of governmental authority generally translates into legislation vesting in the State "ownership" of the water resources. Under legal systems to which the notion of ownership of water is alien, notions of State "guardianship" or "trusteeship" have been employed instead. Under all legal systems, ownership, guardianship or trusteeship concepts essentially provide the underpinnings to the practical result of placing water allocation decisions under the direct control of the government. In view of the diminishing significance and role in water resources management of user-controlled water allocation decisions, relevant bodies of rules have been left out of the scope of this book in general and of this Chapter in particular. As a result, this Chapter will focus on legal mechanisms for the allocation of water resources by, or under the full control of, a government water department or agency.
As anticipated earlier in this Introduction, typically governmental control of water resources allocation decisions is achieved through the instrumentality of government grants variously styled permits, licences, concessions, or authorizations, all of which convey a "water right" - i.e. a right to take and use water subject to the terms and conditions of the grant. For practical purposes, permits, licences, concessions and authorizations can be regarded as equivalent terms, and will be collectively referred to in this Chapter as simply "permits". A policy decision to introduce a government-controlled water allocation mechanism is typically reflected in principal legislation. This will also lay down the main features of the mechanism selected, leaving to subordinate legislation the procedural and substantive details of implementation which are presented in this Chapter.
These concern the process resulting in the granting - or in the denial - of permits (sub-chapter 2); the general obligations of permit holders (sub-chapter 3); the suspension, cancellation and variation of permits (sub-chapter 4); the trading of permits (sub-chapter 5); succession to permits (sub-chapter 6); charging for the use of water under a permit (sub-chapter 7 and Chapter VII); protection of "existing" water uses (sub-chapter 8); easements and other mechanisms complementary to permits (sub-chapter 9); dispute resolution (sub-chapter 10); and law enforcement (sub-chapter 11).
In principle, legal mechanisms and instruments for government-controlled allocation of water resources are equally applicable in respect of the abstraction and use of surface waters and groundwater resources alike. As a result, the mechanisms and instruments presented in this Chapter have, by implication, a corresponding scope of application. However, aspects of the allocation process dealt with by legislation with separate or specific reference to groundwater resources have been presented in Chapter III on GROUNDWATER DEVELOPMENT AND CONSERVATION.
