9 Challenges in Groundwater Governance

The hundreds of books that are being prepared for inclusion in The Groundwater Project are aimed at bringing knowledge to the many pieces of the “out-of-sight” groundwater puzzle. In order to solve groundwater problems so that groundwater can properly serve its essential role in supporting ecology and humanity, we must have more than deep scientific knowledge about groundwater; in order to stave off the tragedy of the commons we must also have governance (laws, regulations, guidelines) consistent with the nature and complexities of groundwater flow.

Resolving the issues concerning the best form of governance to achieve wise water management must begin with a recognition that water and air are globally‑circulating fluids essential to life. Both water and air are finite in quantity and the quantity does not change with time. The same amount of water has been on the earth for hundreds of millions of years. What can change, and must be managed, is the rate of movement of water through the hydrological cycle and the chemical/biological quality of water present at a place and time where and when water is needed to sustain life.

Because water and air are globally‑circulating fluids the effects of human activity on these fluids is not limited to the place where the activity occurs, rather the impacts cascade around the world. The expression “Think Globally, Act Locally” is especially relevant to water management.

The most commonly‑chosen definition of “local” for water management is a watershed (that is, the portion of the earth’s surface from which water could potentially flow downslope on the surface to reach a river channel at a specified outlet location along the channel). Selecting watersheds as management units simplifies measurement of surface water conditions without consideration of the complex groundwater system.

Fortunately, in many cases, particularly in watersheds larger than 1000 km2, the groundwater flow system has little or no net flow crossing the vertical boundary below the watershed’s surface perimeter. In these cases, using a surface watershed unit to manage the underlying groundwater is logical. However, most of the world’s largest and most important aquifer systems exceed 100,000 km2 and underly many different surface watersheds. The management of such large aquifers should encompass the full areal extent of the aquifer.

Many watersheds and aquifers extend across the boundaries of local, regional and national political units. Multi‑jurisdictional water management creates major complexity to groundwater governance and is currently the greatest barrier to effective management. There are a few examples of long‑term successful multi‑national watershed‑governance: 1) the Convention for the Protection of the Rhine; and 2) the Great Lakes Water Quality Agreement for the Laurentian Great Lakes are examples of success, but these arrangements are predominantly concerned with surface‑water issues not groundwater.

The current scarcity of legal mechanisms for management of trans boundary aquifers is documented by Pateiro (2017). Burchi (2018) lists management agreements for six aquifers that cross international boundaries. The oldest agreement (1977) is between France and Switzerland for management of the Genevese aquifer. The other five agreements are more recent, most post 2007, and most have not been fully implemented.

Groundwater suffers from poor governance in most countries due to a failure to recognize the aspects common to most groundwater problems.

  • Groundwater problems typically have a long delay between their cause and the time when the problems are found to be sufficiently acute to draw attention. Too often, the cause‑and‑effect relations are not clear enough to stimulate corrective actions. This differs from issues common to rivers and lakes where the cause and effect, such as fish kills, are usually clear and occur within a short time period, so corrective action for rapid improvement can be taken.
  • For many groundwater problems and especially contamination problems, corrective actions require much time before showing benefits (often decades) so the major benefits from the corrective actions taken by our generation will mostly accrue to future generations. This inhibits corrective actions if there is no broad societal commitment to sustainability.
  • Although groundwater problems are a large part of the global water crisis because they are so common, nearly all groundwater problems are local in that each generally pertains to a single aquifer, single community, single well or single family. Because each problem is local and has its own site‑specific characteristics, each problem has its own features that must be incorporated into problem solutions. The governance structure for groundwater must be flexible enough to respond to issues at all scales from aquifer wide to individual wells.

The record shows that the conventional approaches to groundwater governance across the globe are performing poorly. This is, in part, due to the lack of synthesized groundwater knowledge, but is primarily due to inadequate approaches to governance. Therefore, The Groundwater Project is aimed not only at elucidating groundwater science, but also examining groundwater governance to identify the limiting factors to good governance of groundwater as well as approaches that have proven to be most effective across the globe.

Establishing effective governance arrangements for water must begin by explicitly recognizing water and air as globally‑circulating fluids essential for all life. The result of this recognition is that water and air must be managed as common “goods” not subject to ownership with management entrusted to whatever level of government has constitutional authority. The management of air in the atmosphere as a common good is not questioned, but the classification of water as a common good has been questioned.

In particular, groundwater has been interpreted in some jurisdictions as a “fugitive resource” like oil or natural gas that can be pumped out of a well on a property without regard to the effect of the pumping on the flow of water under surrounding properties or on the surface environment. Governance of groundwater can only be successful if all water, including groundwater, is explicitly recognized in legislation as a common good not subject to ownership. Furthermore, extraction of water from natural systems must be recognized as a usufructuary right (a temporary right of use without damaging or destroying) subject to regulation of the rate of extraction and the water quality when it is returned to the natural system.

Groundwater depletion and contamination are problems we pass on to future generations and there is a need for a better ethical framework for groundwater governance (Abrunhosa et al., 2018). Widely accepted ethical norms arising from principles of intergenerational justice demand that we not make future generations pay for past or present failures at good governance. This is so fundamental as to be at the very heart of the concept of sustainable development, as enshrined in the United Nation’s Sustainable Development Goals.

Central to achieving this ethical goal will be the widespread adoption in deed, and not just in word, of the Precautionary Principle. This principle received international attention in 1992, as Principle 15 of the United Nation’s Rio Declaration on Environment and Development: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation” (Bourguignon, 2015). More recently, the principle has been included either explicitly or implicitly in the majority of international law concerning the physical and biophysical environment, environmental protection, and environmental management. It has been implemented domestically in federal, provincial, and even municipal laws of United Nation’s member states. And it is referenced in numerous policies and guidelines both domestic and international, albeit in a variety of different forms (McCaffrey, 2007; Stirling, 2007; Eckstein, 2017; and Jaeckel, 2017). The principle is well known in groundwater governance circles as it pertains particularly to uncertainties regarding management of groundwater extraction and recharge rates (UNESCO, 2012; Foster and Chilton, 2018; and van der Gun, 2018). Less attention has been given to how precaution can guide our governance with respect to the scientific determination of groundwater contamination from anthropogenic causes (Stewart et al., 2020).

Going forward, the Precautionary Principle will demand of the groundwater community—from scientists to policy theoreticians, from local water managers to international law courts—the humility and frankness concerning the challenges we face in governing ourselves and our planet when there is so much we do not know, but when we know enough to be deeply worried. We owe it to future generations to translate that worry into knowledgeable action.


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