2014 UN-Water Annual International Zaragoza Conference. Preparing for World Water Day 2014: Partnerships for improving water and energy access, efficiency and sustainability. 13-16 January 2014

Informal Side Breakfast Meeting: Legal and tenure aspects on water and energy

Date: 15 January 2014 Time: 8:30-9:00
Place: Sala de los Glaciares, Ebro River Basin Authority (main venue)
By Elena Lopez-Gunn (ICATALIST for FAO), Rosa Huertas (Duero River Basin Authority), Antonio Embid (University of Zaragoza) and Beatriz Mayor (UCM-Repsol).

This breakfast will reflect on the legal and secure tenure aspects of the relationship between water and energy, giving particular attention to renewable energy and ecological flows.

Kick-off questions for breakfast meeting

  • What opportunities are there to explore synergies in securing access to water and energy e.g. under a rights based approach?
  • What is the experience with the establishment of ecological flows? Is it a nirvana or reality? Can specific cases be documented?
  • Is it possible to regulate jointly for water and energy? How to better integrate the regulatory frameworks in water and energy?
  • The “new kid on the block”: regulating shale gas- what are the challenges and opportunities?
  • How can the misalignment in policy goals in each sector be addressed through innovative regulation?
  • What conceptual elements from the human right to water could be used for the construction of the human right to energy?
  • Should we speak of a right to energy or a right to electricity?
  • Does the inclusion of the right to free energy involve free access or access at an affordable price?
  • How to relate this right to self-generation, the use of natural resources and the use of renewable energy

Examples of cases to be drawn from in the breakfast meeting

Cases will be based on a preliminary FAO study on water tenure zooming into policy coherence with energy for case studies in Spain, India and South Africa. The Douro River Basin Authority will present a case study on the auditing of state water concessions for hydroelectric power, whereas Professor Antonio Embid will present an edited volume on water and energy with cases from Argentina, Germany and Spain.

Evidence to draw upon

  • Reference Case 1. A human right to water and energy: legal aspects.
    Professor Antonio Embid, University of Zaragoza
  • The holding of this meeting on" Water and Power" allows also to undertake reflections on an aspect usually overlooked but that has very solid conceptual basis to allow water issues a link to energy. First there are statistical data that relate these realities. In the field of water there are almost a billion people without access to safe drinking water and twice this amount of people without basic sanitation. In energy the reality is more shocking: Two billion people lack access to energy and three billion more have poor access to energy services. The human right to water has a long history in which there are fundamental points, such as the current decade (2005-2015) which aims to halve the number of people without access to safe drinking water and basic sanitation. On the legal side Comment No. 15 of the Committee of Economic, Social and Cultural Rights of the United Nations, adopted at a meeting held in Geneva in 2002 is based on the International Covenant on Economic, Social and Cultural Rights of 19 December 1966, which had an implicit right to water in their arts. 11 (right to an adequate standard of living) and 12 (right to health). The Resolution of the General Assembly of the United Nations in July 2010 would mean the consecration of all these previous steps along the way. Of course it is the States that have to make this human right via its implementation into the Constitution (a path already followed in the case of South Africa, Uganda, Uruguay, Ecuador, Bolivia or Mexico) is essential, as well as the approval of ordinary legislation that enables the fulfillment of the human right to water. Obviously the performance of the courts completes the circle of conditions necessary for the right to be realized. In the field of energy this path is practically starting. Except for some mentions in relevant documents (declaration of the Johannesburg Summit in 2002), only Bolivia's Constitution (Article 12) recognizes the right to electricity. However its instrumental element for realizing the right to health, education or health clearly links with what happened to the right to water and undoubtedly will be part of a road that must be traveled now. In particular some additional elements encourage this reflection and subsequent action, like difficulties in the access to electricity that certain developed countries are beginning to have across increasingly broad social layers as a result of the economic crisis and high prices in the power supply. Therefore the right to energy is no longer a problem circumscribed to developing countries.
  • Reference Case 2. Ecological flows in renewable energy: Auditing State concessions for hydropower plants in the Douro Basin, lessons learnt.Ms. Rosa Huertas, Water Commissariat Department, Duero River Basin Authority Checking in on hydro water rights. Duero Basin 2009-2013
  • Since 2009, the Water Authority has been conducting an intensive inspection of existing hydropower plants in the Duero basin with the following objectives: 1. To know the reality of these exploitations; 2. To update the concessional updating the Water Register and the cast of fee regulation. And 3.Ensure compliance with the clauses of the water state concession, with a special emphasis on environmental conditions. In relation to the legal aspects and tenure information collected has resulted in an update of the Water Register to the extent that the Registry has now been fully updated. In turn, this information has allowed updating the list of these exploitations with the economic study of the canon of regulation under different operating conditions. Regarding the compliance with environmental flows, there has been special interest in the enforcement of ecological flows for concessions, in compliance with the obligations under Article 55.4 of the revised WaterAct in ARM/1312/2009 Order of 20 May, regulating the volumes captured. With some specific cases, all hydroelectric plants in operation are measuring, recording and reporting on data both on ecological flow discharged by the weir, and turbine flows. This means that at present control can be performed both "in situ" and remotely, and which is already operational in about 130 plants. This has had a very positive result since it can be argued that the hydropower sector in the enforcement of flow control in the Duero basin is almost complete, with the addition that the entire investment of the measurement systems, recording and communication has been undertaken by the users. Moreover, in view of the success and experience gained, it is being extrapolated to other large users (authorized user with over 300 l / s flow). Meanwhile in relation to water for energy, information obtained allowed for a precise knowledge on the weight in the national electricity system that existing hydropower plants have in the Duero basin.
  • Reference Case 3. Security of tenure in water and energy: preliminary results for Spain, India and South Africa.
    Dr Elena Lopez-Gunn, Founder/CEO ICATALIST for FAO, and Manuel Bea. Professor IE Business School
  • FAO has commissioned a number of water governance and water tenure case studies to take place in India, Spain and South Africa. This is part on its current Coping with Water Scarcity program, looking for new approaches and tools to increase knowledge and understanding related to water governance including the water/food/energy nexus. ICATALIST, a research an open-innovation consulting firm has been commissioned by FAO to carry out the case study for Spain, with a strong partnership with the Duero water authority, support from the Guadiana water authority, as the two case study areas, and with local water users, including water user groups, and industrial uses like photovoltaic and thermosolar uses. The rationale for the study is to apply the concept of “tenure” to water. For the purposes of the case study water tenure is defined as ‘the relationship, whether formally or customarily defined between people, as individuals or groups, with respect to water resources’. Thus the way it is understood is as a boundary concept that straddles the interaction on the one hand of formal water rights and on the other of its actual implementation on the ground. The approach therefore is bottom-up and user led, as compared to water rights which are top-down and state led. Thus the focus is on the reality on the ground, and mapping the existing relationships without a priori normative judgements. Instead this bottom up approach based on a water tenure analysis is hypothesised can give insights into the complex system of water use. Issues related to policy coherence and particularly to security of tenure ink directly to energy and water as one of the layers included in the analysis.
  • Reference Case 4. Delphi Study on trends in the interrelations between legislation, water and energy to 2050. Beatriz Mayor, Researcher at UCM, Repsol
  • The water-energy-food nexus has increasingly been recognized as one of the key drivers conditioning the sustainability and security of future energy and water supply (Hoff, 2011; WEF, 2013), as well as the choice of the set of technologies that can better lead towards positive water-energy efficient scenarios. However, one of the biggest challenges relies in reducing the multiple existing uncertainties on selected variables, depict trends, interrelations, important agents and possible disruptive events that may have an impact in the future of water, energy and food resources and the evolution of energy technologies. In parallel, the way legislation is adapted to face these new challenges to provide an adequate framework that conducts the technological choice towards sustainability is crucial; thus a preview and follow up of trends in this field can help identify legislative gaps or aspects that should be taken care of. With the aim to reduce these uncertainties, a private-public partenariat leaded by Repsol, with participation of research and educational institutions (UCM, CSIC, EHU-UPV, CES Cisneros and ICATALIST) and a prospective specialized enterprise (Prospektiker), has been created to develop a Delphi study about prospective and future trends on energy legislation and the water-energy-food nexus. This study, based on the opinion and contributions of named national experts on the topic from different backgrounds and institutions, has leaded to interesting results that can help bring some clarity on the topic and identify potential elements of impact.