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House Committee on Nat'l Integrated Water Resources Bill on TUESDAY, Jan. 19!!

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MEMORANDUM ON NATIONAL INTEGRATED WATER RESOURCES BILL, 2009
By Belize Institute of Environmental Law and Policy (BELPO)

INTRODUCTION

The GOB has introduced a Bill entitled the National Integrated Water Resources Bill, 2009 (“the Bill”). At present, this is a draft law that has been read once in the National Assembly. There will be a House Meeting on Tuesday, January 19, at 2pm.

This is the time that we, the people, can comment on the Bill; the Bill will be subject to redrafting during this time. This Memorandum attempts to give you a summary of the Bill, with comments, so that you can voice your concerns at the House Meeting.

The brief summary, followed by comments, is meant to give people an idea of the Bill and point out areas of concern. Do to the short notice on the House Committee meeting, we do not represent this as a complete or all-encompassing review.

It is meant to make you aware of concerns in hopes the you will make comments to the Committee either in person or by written submission.

At the end, there is a summary of how the Bill interacts with other legislation, particularly the Water Industry Act and the Public Utilities Act.

As presently drafted, the Bill has many shortcomings. The things that seem most significant, in this first review are the proposed legislation:

- gives too much discretion to the Authority and the Minister of Natural Resources;
- leaves open the possibility of charging people for collecting water in own vat;
- could act like mineral or oil and gas exploration where water resources are tied reserved or tied up by private entities;
- limits the composition of the Authority to individuals that would not adequately represent environmental and social interests;
- prioritizes private interests over environmental integrity;
- limits public participation;
- is unclear and ambiguous way in many sections.

SUMMARY AND COMMENTS OF EACH PART

Part II – Water Resources Administration

Part II establishes a “National Integrated Water Resources Authority” (“the Authority”) [Sec.3]. It gives the Authority power to do anything that it considers “necessary to ensure the proper performance of its functions.” [Sec. 4(2)].[1] It places a duty on the Authority “to regulate, allocate, conserve and otherwise manage the water resources of Belize.” [Sec.4(1)].

The Authority will be composed of seven Directors; the CEO of the Ministry of Natural Resources and a designate from the Public Utilities Commission will be “de facto members of the Authority” [Sec.7(1)].

Only people who are “of recognised competence in …Law, Public Utilities Management, Economics, Finance, Banking, Commerce, Business Management, Forestry, Agriculture or Environmental Engineering” can fill the seven Director positions of the Authority [Sec. 7(1)(a)].

Included in the Bill are provisions limiting the economic interests that Directors and staff can have in public utility providers, and other conflict of interest provisions [Sec13].

The Authority is to prepare a draft “National Water Resources Master Plan” for Belize (to be approved by the Minister) [Sec. 14.1]. The Master Plan must:

- reflect the policy of the GOB which is stated in Sec.15 [Sec. 14.1];
- inventory water supplies, water uses, and activities dependent on water [Sec. 14(4)(b);
- identify “objectives for the development, conservation and use of water resources” [Sec. 14(4)(b)], projected needs for water [Sec. 14(4)(c)], and objectives regarding water quality and quantity [Sec. 14(4)(d)].

Comments
The Authority is granted a great deal of power.

Having one authority charged with overseeing Belize’s water resources is beneficial because the public will be able to turn to a single government body for information and accountability BUT it is not representative, leaving out environmental scientists, human rights specialists, non-governmental and public interest groups.

There is no requirement that the Director positions are to be evenly distributed amongst the different areas of expertise.

During consultations on this Bill, the Belize Hydrology Unit, among others, voiced the need for a stakeholder/community-based, holistic approach for the management of Belize’s water resources, the coordinated development and administration of water, land and related resources, in order to maximize the social and economic benefit in a fair and equal way, without endangering the sustainability of vital ecosystems.

Private interests and development goals are prioritized in the Master Plan. In preparing the draft Master Plan, the Authority is required to do whatever it takes to coordinate the Plan with government agencies or departments for national or regional physical and economic development and to any plans the related to development of water resources by private interests [Sec. 14(3)].

The Bill therefore requires the Authority to place a strong emphasis on physical and economic development with no corresponding duty placed on the Authority to coordinate with the conservation plans of the Government or of civil society.

There are no provisions requiring public participation in the creation of the Master Plan.

Part III – National Policy and Licensing
This part sets out the government’s water policy and establishes some of the general licensing requirements for people wanting to abstract water.

The water policy of the Government of Belize is to develop the “use of Belize’s water resources, to conserve and protect such resources for the benefit of present and future generations of Belizeans, and to provide the Belizean public with a safe, adequate and reliable supply of water” [Section 15(1)].[2]

The Authority is required to “discharge its function…so as to secure the effective execution of that policy by the bodies responsible” for the abstraction, augmentation, distribution, and proper use of water resources [Section 15(2)].

General provisions relating to the procedure for granting licenses are outlined [Section 15(3)]. Some of those provisions are that:

- the Authority must give notice of its intention to grant a license and allow at least 28 days for comments on the proposed license [Section 15(4)-(6)];
- conditions can be placed on a license [Section 16];
- licenses can be modified (with the consent of the license holder) [Sec. 17];
- orders can be issued to ensure compliance with a license if its conditions have been contravened [Sec. 18]; and
- the Authority can cancel or withdraw a license (for not more than twelve months) if provisions of the license are not followed [Sec. 20].

The Authority to maintain a record of licenses which is open to the public [Sec. 19].

Comments:

Public participation. When the Authority is planning on issuing a license for water abstraction, it must give notice [Sec. 15]. The Authority is required to publish the notice they consider appropriate in order to bring it to the attention of those who will probably be affected by the granting of the license. It is their call on how to give notice and they decide who will be affected.

This discretionary provision could be used to significantly limit who is given notice about the issuing of a water abstraction license. It is better to require that notice be given to the public at large, through at least two national newspapers and radio notices.

Another barrier to public participation is the limited accessibility of important documents. For members of the public to access both the Master Plan (discussed in Part II) and the record of licenses, there is the potential for a fee to be levied [Section 19(3) for license records and Section 14(5)(d) for the Master Plan]. Also, the record of licenses only needs to be held in one location and only needs to be accessible at limited times during the day [Sec. 19].

It is far better to require the record of licenses and the Master Plan to be available free of charge in libraries, town halls and on the internet.

Authority granted too much discretion. The Authority can choose whether or not to enforce compliance in regards to a certain licensee [Sec. 18]. This provision can be an invitation to corruption. The lack of compliance to the Act by a Licensee must be accompanied by mandatory enforcement measures.

Part IV – Functions, Powers and Duties of Licensees

This part sets out the general duties placed on Licensees. This includes the duty to carry out the policy of the government regarding water abstraction, to maintain and develop waterworks and water mains, and to provide a safe, adequate, and reliable supply of water as the case may be [Sec. 21(1)].

Other duties placed on Licensees include:
- to take into consideration such things as the conservation of natural features, protection of built features (such as archeological sites), and the effect on an area’s beauty and surroundings when the licensee formulates a proposal [Sec. 22].
- to do what is needed to conserve, redistribute or develop any Belize’s water resources in consultation with various Ministries [Sec. 23(1-3)].

One of the key provisions in this Part gives the Authority the power to create regulations for water abstraction [Sec. 21(2-4)].

Comments

The environmental and conservation provisions in Sec. 22 are very weak and ambiguous. For example, licensees are only required to “have regard to the desirability of” conservation when “formulating or considering any proposals” [Sec. 22(b)]. They should be required to meet conservation goals (not just consider it in making plans).

Part V – Abstraction and Use of Water

A person must get a license to abstract and use water unless it is for a domestic or an agricultural purpose [Sec. 26].[3]

Requirements to apply to the Authority for a license, to grant a license, and to amend or revoke a license (which supplement licensing sections in Part III) are set out in Sec. 27-29.

The Authority can impose restrictions on the use of a license if the relevant area is declared to be an emergency area by the Authority [Sec. 31].

The GOB has the vested right to water use and flow, but states that the Authority can establish private rights for use [Sec. 25(1)].[4]

This part also sets out the procedures for licensees to obtain easement[5] over private property. The licensee needs to get permission from the landowner or occupier or apply to the Authority who will decide whether an easement should be allowed [Sec. 34-7].

Section 40 gives the Authority power to make special regulations when there is a serious deficiency in water supply (they decide when there is a deficiency). This allows for giving the licensee power to “take water from any source[6] specified in the regulations,” to “prohibit or limit the use of water for any purpose,” and prohibit or limit people from taking water from any source specified in the regulations.

Comments

The drafting of several provisions in Part V is unclear. Sec. 31, regarding emergency areas, suggests that an area can be declared an emergency area by powers conferred on the Authority in Sec. 21. However, Sec. 21 does not speak specifically to declaring emergency areas; Sec. 40 seems to give this power.

Sections 29 and 27(1) refer to the need for a license pursuant to Sec. 15 but Sec.15 does not require licenses to be obtained; Sec. 15 only sets out procedures for the licensing process while Sec. 26 requires a license to be obtained.

Prioritizes private interests.
The emergency powers given to authority in Sec. 40, suggest that in the case of a water shortage, the interests of licenses will be prioritized over the interests of regular people because it makes it possible for the Authority to give the licensee power to “prohibit or limit the use of water for any purpose.” Conceivably, “the use of water for any purpose” would include domestic uses. [See footnote 6]

No guarantee from government.
Sec. 32 of the Bill says that even though the Authority issues a license on the basis that works have been properly constructed, the government is unwilling to guarantee that the works have been properly constructed.

This provision makes it difficult for any citizens to seek damages for poorly constructed water works.


Part VI – Control and Protection of Ground Water, Control of Well Drilling
This part sets out the framework for dealing with groundwater supplies. The central provision in this part states that no one can “sink, construct, enlarge or otherwise alter a well” unless they have the consent of the Authority [Sec. 41]. The Bill prohibits wasting ground water by letting it run to waste [Sec. 44], prohibits disposing waste into wells [Sec. 48], sets our requirements for preventing contamination or pollution of groundwater [Sec. 45], and gives the Authority power to make orders for the protection of aquifers [Sec. 46].

It also requires people undertaking mining operations to “take such measures as may be required by the Authority for conserving ground water” [Sec.43].

Comments

The conservation measures that must be taken in relation to mining operations will be limited because the extraction of minerals is a priority over conservation: according to the Bill; it says that conservation measures won’t interfere with the extraction of minerals or other substances” [Sec. 43].

Part VII – Gathering Grounds

This part gives the Authority the power to protect areas that are important for securing an adequate quantity and quality of water supplies.

All “gathering grounds” must be protected as forest reserves, national parks, or controlled areas [Sec. 51]. “Gathering grounds” are defined in Sec. 2 as “any surface of land or device which collects rainfall and which supplies a controlled area or waterworks”.

The Authority can establish buffer zones around gathering grounds and can create regulations that prevent people from engaging in activities in those areas that would threaten water supplies [Sec. 53]. The Authority can also set out or limit “recharge” areas that would be protected as well [Sec. 54].

If, in the opinion of the Authority, the storage capacity or sanitation of a gathering ground is threatened, the Authority can ask various Ministries to take action, and can only take action itself when the Ministries fail to act promptly [Sec. 52].

Comments

If the Authority had the duty to protect water resources, rather than a discretionary power, to establish buffer zones around gathering grounds, it would be more effective.

The Bill should include a list of activities that are absolutely prohibited around gathering grounds, such as oil and gas extraction, dam building, chemical processing, etc.

Part VIII – Control of Water Abstraction and Use

This part seems to give the Authority power to identify “controlled areas,” “controlled uses,” and “controlled class of uses” when it is in the public interest [Sec. 55(1)]. In exercising this power, the Authority is required to have regard to the hydrology of an area, water demands, water availability, and the impact of wastewater and wastewater technologies [Sec. 55(3)].

Controlled areas are simply defined in Sec. 2 as “[a]ny area specified in a license within Belize for the abstraction and use of water.”

Once an area or the use of water is considered to be “controlled”; abstraction can only be approved by the licensing requirements set out for controlled areas and uses. These provisions seem to give the Authority more discretion for determining what will be required in the licensing process.

Comments

Private interests given priority.
People who have already been taking water from a controlled area or for a controlled use will receive a “license by right.” [Sec. 65] In determining the quantity to be granted in the license, consideration will be given for the requirements of the applicant [Sec. 66(2)]. Such a determination of quantity should be based on the availability of water supplies and what the environment can bear and not on the needs of the applicant.

The drafting of Sec. 55, which gives the Authority power to declare controlled areas and uses, is not entirely clear about when the Authority can exercise this power; it only says that it can be exercised when the Authority is satisfied that it is in the public interest. The factors needed to be considered by the Authority in making its determination are not accompanied by any indications of what would trigger the need for a controlled area or use.

Part IX – Water Pollution Control

This part attempts to protect water from pollution. The Authority has the power to declare an area to be a “controlled water quality area,” or can declare a substance to be a “controlled waste” or a “controlled class of waste” if it “is necessary to protect the quality of water resources” [Sec. 68]. The effect of the declaration is that no one can discharge wastes into “controlled water quality areas” or discharge “controlled wastes” or “classes of wastes” without a permit from the Authority [Sec. 69] unless it is for agricultural or emergency purposes [Sec. 70]. The Authority is required to create a “Register of Waste Disposal Permits” [Sec.75].

In exercising this power, the Authority is required to have regard to health and environmental factors [Sec. 68] and to consult with the Minister and “other relevant person, body, or organization” [Sec. 68(3)].

The Authority is to make regulations setting out the procedure for applying for and issuing permits [Sec. 72]. The Bill provides very little guidance in terms of what needs to be included in the regulations, but does say that adequate opportunities for public comment must be provided [Sec 72]. Once issued, permits can be varied, suspended, or revoked [Sec. 74].

The Authority has the power to engage in “such operations as it considers appropriate” to prevent the pollution of waters or to clean it up [Sec. 78-9]. The Authority has broad powers to make by-laws to protect water from pollution Sec. 80(1)]. Licensees can also ask property owners to keep water works on their property in good repair to avoid pollution [Sec. 80(2-4)]. The Bill creates an offence for polluting waters likely to be used for human consumption [Sec. 81] and is punishable with a minimum fine ($10,000) and the possibility of jail time [Sec. 83].

Comments

Public participation.
The Authority is not required to make the “Register of Waste Disposal Permits” public.[Sec.75].

Too much discretion given to the Authority.
In order to be effective, this Part needs to include more limits:
- the Authority should have to determine the total load of wastes that waters can hold and determine absolute maximum limits on what can be discharged;
- the Bill does not define what the Authority needs to look at when determining whether declaring a controlled water quality area “is necessary to protect the quality of water resources.” [Sec. 69];
- there is absolutely no guidance provided to the Authority for the establishment of by-laws to protect water from pollution, and the Authority is not required to establish any [Sec. 80(1)];
- the Authority is charged with making regulations that provide the criteria for decision making on permits to discharge pollution, subject to the approval of the Minister [Sec. 72(1)(c); since permitting the discharge of pollution into water could have such a significant impact on human and environmental health, the Bill must include more specifics about what criteria the Authority needs to assess.

There seems to be numerous drafting errors in Part IX which make it difficult to determine what each provision means:
- Sec. 68(2) refers to factors listed in section 56(2), but that section does not list any factors.
- Sec. 71 refers to the violation of provisions in Sec. 70, but those provisions are not ones that can be violated.
- Section 79(1) refers to agricultural practices in Sec.70(b) but only Sec.70(a) refers to agricultural practices.

X – Control of Water Quality and Reservation

This part gives the Minister power to establish “Water Quality Control Areas” where water uses will have to be planned and where water quality will have to meet a certain standard. On the recommendation of the Authority, the Minister can establish “Water Quality Control Areas.” [Sec. 84] The Authority must then prepare a “Water Quality Control Plan” and provide for public comment on the plan [Sec. 85]. The plan must inventory environmental factors (present and anticipated) such as the presence of water in the area, discharges of waste, controlled land uses, and scenic and environmental values [Sec. 85]. Most notably, ambient water quality standards need to be established as well as provisions for achieving the ambient water quality standards [Sec. 85(4-5)].

This part also gives the Authority power to reserve water from being taken or used while an entity is looking into whether they want to exploit the waters for irrigation, water supply, waterworks, power system or project or use by the “Crown” for any purpose [Sec. 86(1)].
The reserved water can subsequently be acquired for the purpose that it was reserved for [Sec. 86(2)].

Comments

Special areas need to be coordinated. The Bill gives the Authority the power to declare: “controlled areas” (Part 8), “controlled water quality areas” (Part 9), and “water quality controlled areas” (Part 10).

In theory, the creation of special areas is good because it allows for the management of water resources in a defined geographic area. If the Authority were to exercise its powers under all of these parts, it could create an incredibly confusing and complicated web of areas within Belize that would be subject to different rules and abuse of power.

A better framework for protecting water resources would be to divide the country into water management areas based on watersheds. According to the Hydrology Unit of Belize, 16 principal watersheds have been identified in Belize and they can be amalgamated into 6 main watershed regions.

The areas could be overseen by a central body, such as the Authority. For each area, a holistic plan should be created that addresses the concerns in Parts 8, 9, and 10 for managing water quality and quantity. An important part of the plan would be the establishment of ambient water quality standards that could be used as the guiding indicator for management decisions.

Too much discretion given to the Authority.
The “Water Quality Control Plan” is a good idea, especially where it requires the setting of water quality standards. Such standards are helpful for setting an overall maximum on what stresses a certain water resource can bear. However, it should be made a duty of the Minister to establish “Water Quality Control Areas” and to create the related “Water Quality Control Plans”.

Private interests prioritized.
Section 86 regarding the reservation of water could act like the mineral and oil and gas exploration system where private entities race to stake out resources they hope to exploit. This section could result in the water resources of Belize being totally tied up with private rights.

Part XI – Financial Provisions, Accounts and Reports

This part sets out general requirements for the Authority’s budget, accounts, and annual report.
The Authority will receive funds from the National Assembly and “such sums as may in any manner become payable to or vested in the Authority from any lawful source whatsoever.” [Sec. 87]. The Authority must pay its expenses from a budget approved by the Minister of Finance [Sec. 88-9]. The Authority must keep accounting records that will be audited [Sec.90]. The Authority must prepare an Annual Report that includes financial and program information, and is to be tabled in the National Assembly [Sec.91].

Comments

The Authority’s ability to accept money from “any lawful source whatsoever” could create an avenue for corruption. Individuals and corporations interested in swaying the decisions of the Authority could make donations to the Authority on the understanding that the favor would be returned.

Part XII – Vesting of Hydrology Unit

The Hydrology Unit and all of the associated interests, rights, assets, and liabilities will come under the Authority [Sec. 92].

Part XIII – Legal and General

This part provides for general penalty provisions, additional powers for the Authority, and a number of miscellaneous provisions. It sets out the steps that the Authority ­may take if someone acts in contravention of the Act (in regards to abstraction of water, water works, and ground water) or doesn’t comply with a license. In essence, the Authority can issue an “enforcement notice” informing the responsible person(s) of the breaches and require them to take steps within a certain time to remedy the situation [Sec. 93]. The person(s) has a right to appeal [Sec. 93]. If the person fails to act, the Authority can take the necessary steps and charge the person for the costs [Sec. 94].

There is also a general penalty section [Sec. 102], a penalty section for obstructing and polluting water courses [Sec. 96], and a penalty section for unlicensed groundwater drilling [Sec. 98].

It creates powers for investigations and officers designated by the Authority [Sec. 95. 97, 99, 100, 103]. It also gives the Authority a general regulation making power [Sec. 104].

There are several miscellaneous provisions, including one that establishes the liability of certain employees of corporations [Sec. 101].

Comments

Unclear drafting. There seems to be some overlap between the penalty provisions in this part and the penalty provisions in other parts. For example, Sec. 83 provides a penalty for pollution of water ways in Part IX, while Sec. 96 in Part XIII also provides for a penalty for pollution of waterways. The overlap is significant because one calls for a minimum fine, while the other does not.

Private interests prioritized.
Sec. 101 (re: corporate liability) could be strengthened by adding additional heads of liability, such as willful blindness and imputed knowledge.

INTERACTION WITH WATER INDUSTRY ACT AND PUBLIC UTILITIES ACT

The National Integrated Water Resources Bill, 2009 (NIWRB) contains several provisions that explain how the Bill will interact with the Water Industry Act (WIA), the Public Utilities Commission Act (PUCA), and any other Act in force. In summary, the NIWRB prevails over all other Acts that have contradictory provisions except the WIA and the PUCA in certain situations.

Comments

The drafting of these provisions has the potential for ambiguity in their interpretation.

For example, a problem may arise with Sec.4(1) and Sec.106 in determining what is meant by elements of the WIA that “relates to the provision of water and sewer services”; this term could be narrowly or broadly interpreted depending on which Act the interpreter wanted to apply. It is clear that Part II of the WIA (entitled: Regulation and provision of water and sewerage services) would be included, but it is less clear whether provisions having to do with the licensing of water services provided for in part III of the WIA.

Another problematic provision is the high degree of discretion granted to the Authority to determine which law should prevail in Sec. 25(3).

Also, there is the potential in both Acts, to control the water people collect in their vats or for wells they may drill on their own property.
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[1] Sections 4(3) and 6 list a broad range of powers given to the Authority.
[2] Note: this is the same policy as is stated in the Water Industry Act.
[3] Note: the meaning of “domestic purposes is defined in section 2, and according to section 26, the parameters of such use are to be defined by the Authority”.
[4] This section refers to “Crown” rather than “Government” indicating the law was copied from another law.
[5] An easement is a limited right to make use of a property owned by another.
[6] There is a possibility this could include collecting water in one’s own vat.
[7] Section 2 of the Public Utilities Commission Act, Chapter 223.
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Live and let live