A New Water Policy Option for Australia? Collaborative Water Governance and Audited Self Management: A New Water Policy Option for Australia?

A New Water Policy Option for Australia? Collaborative Water Governance and Audited Self Management: A New Water Policy Option for Australia?
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  This is a draft working paper - a peer reviewed and revised version of this paper, which was accepted for publication, can be found at the following citation: Holley, Cameron and Sinclair, Darren. A new water policy option for Australia?: Collaborative water governance, compliance and enforcement and audited self-management [online]. Australasian Journal of Natural Resources Law and Policy, Vol. 17, No. 2, 2014: 189-216. Availability:;dn=410693449917717;res=IELAPA ISSN: 1320-5323 A NEW WATER POLICY OPTION FOR AUSTRALIA? COLLABORATIVE WATER GOVERNANCE, COMPLIANCE AND ENFORCEMENT AND AUDITED SELF-MANAGEMENT Cameron Holley and Darren Sinclair *  I INTRODUCTION Freshwater is essential for the environment, our food and water security, and economic production. Yet, we face a water crisis. Future droughts, climate change and increasing water demands from agriculture, energy and human use pose significant risks to global and Australian water supplies. 1  These risks are particularly high for Australia’s non -urban water supplies, where governments historically granted more entitlements to water than could be sustained, creating problems of over-allocation. 2  In response, Australia pursued a series of major reforms, resulting in a hybrid system of top-down regulation (hierarchy), water trading (markets) and water planning with stakeholder cooperation (collaborative water governance). 3  While substantial progress has been made in implementing this system, there is a pressing need to improve collaborative water governance (CWG). 4  Although there is no definitive CWG model  per se , the term collaborative governance is increasingly used to refer to water and environmental policy approaches that encompass some or all of the following principles: collaboration, integration, flexibility, decentralisation and *  Cameron Holley, BSc(Env)/LLB (Hons I) (Griffith), Grad Dip in PLEAT (UQ), Grad Cert in University Learning and Teaching (UNSW), PhD (ANU) is Senior Research Fellow (DECRA), Faculty of Law, UNSW Australia, member of Connected Waters Initiative Research Centre, and Research Affiliate at the National Centre for Groundwater Research and Training. Darren Sinclair, BSc (Hons I) (Sydney), M Env Law (ANU) is Research Fellow at the Fenner School of Environment and Society, Australian National University, visiting fellow at the Connected Waters Initiative Research Centre and member of the National Centre for Groundwater Research and Training. The research was partially funded by an ARC Discovery Early Career Researcher Award (DE140101216), an ARC Linkage Grant (LP130100967), a NSW Department of Trade and Investment/NSW Research Attraction and Acceleration Program, Collaborative Research Infrastructure Scheme Grant and the National Centre for Groundwater Research and Training. Some elements of the case study analysis was first developed in C ameron Holley, ‘Crafting Collaborative Governance: Water Resources, California’s Delta Plan, and Audited Self- Management in New Zealand’ (2015) 45 Environmental Law Reporter 10324. We are grateful for the research assistance provided by Bonnie Perris and Antonia Ross. 1  World Water Assessment Programme (WWAP), UN World Water Development Report (Earthscan, 2012); C Pahl- Wostl, G Holtz, B Kastens and C Knieper, ‘ Analyzing Complex Water Governance Regimes’ (2010) 13(7)  Environ Science Policy 571; National Water Commission (NWC), The NWI   — Securing Australia’s Water   Future 2011 Assessment (Australian Government, 2011). 2  NWC, ‘Sustainable Levels of Extraction: National Water Commission Position’ (Australian Government, 2010). 3  K Hussey and S Dovers (eds),  Managing Water for Australia  (CSIRO, 2007). 4   Y Wei, R Ison, J Colvin and K Collins, ‘ Reframing Water Governance: a Multiperspective study of an Over- engineered Catchment in China’ (2012) 55(3)  Journal of Environmental Planning &  Management 297.  participatory and deliberative styles of community decision-making. 5  Despite the popularity and rhetoric of CWG in Australia and across the globe, its success is not widespread and remains elusive. 6  For instance, Australia’s approach to water planning has aimed to engage the community and government in management decisions and return over-allocated systems to environmentally sustainable levels of extraction. 7  Yet, palpable weaknesses have plagued these processes, including poorly managed community engagement, insufficient scientific information, weak monitoring and adaptation and a failure to address over-allocated systems. 8  These problems have led Godden and Ison to note that: ‘There is an urgent need to broaden the constituency of civic engagement with water in a more meaningful manner...and to explore governance arrangements that will achieve outcomes in an equitable, effective way’. 9  What then are the best ways to collaboratively govern water use; and how and in what ways can community engagement in water governance be reinvigorated? 10  While there have been increasing attempts at answering these questions through studies of water planning in Australia, 11  there is arguably equal merit in taking a ‘hard’ look at international CWG examples, to understand their strengths, weaknesses and outcomes. 12  This article accordingly sheds light on a recent international innovation in CWG known as Audited Self-Management (ASM) and provides one of the first empirical examinations of the performance of this innovative CWG process in New Zealand. 13  Drawing on 28 in-depth interviews and a survey, the article offers insights into the strengths and weaknesses of ASM for collaboratively managing water and analyses whether and to what extent this CWG model provides a feasible policy approach for Australian water management. 5  B Kark  kainen, ‘“New Governance” in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping’ (2004) 89  Minn L Rev   471, 473; N Walker, ‘ EU Constitutionalism and New Governance’ in G de Búrca and J Scott (eds),  Law and New Governance in the EU and the U.S.  (Hart, Portland, 2006) 15-24. 6  J Ananda and W Proctor, ‘Collaborative Approaches to Water Management and Planning’ (2013) 86  Ecological Economics 97. 7  NWC, above n 1, 4, 101. 8  Not all planning process have been unsuccessful. See, e.g. NWC,  National Water Planning Report Card 2011 (Australian Government, 2011). Furthermore, d espite the many weaknesses, Australia’s water planning regime is maturing, and there have been recently noted improvements in the quality and extent of collaborative planning see NWC,  Australia’s water blueprint: national reform assessment 2014  (Australian Government, 2014) 11. 9  L Godden and R Ison, ‘From Water Supply to Water Governance' in M Davis and M Lyons (eds)  More Than Luck, (CPD, 2010)183. 10  G Syme and B Nancarrow ‘The Social and Cultural Aspects of Sustainable Water Use’ in L. Crase (ed) Water Policy in Australia (RFF, 2008) 19; T.R. Tyler,  Readings in Procedural Justice  (Ashgate, 2005); K Berry and E Mollard (eds), Social Participation in Water Governance and Management (Earthscan, 2010); NWC, above n 1,7; A Wiek and K Larson, ‘Water, People and Sustainability’ (2012) 26 Water Resource Management 3153; PL Tan, K Bowmer and C Baldwin, ‘Continued Challenges in the Poli cy and Legal Framework for Collaborative Water Planning’ (2012a) 474  Journal of Hydrology 84. 11  Tan et al, above n 10; C Holley and D Sinclair, 'Deliberative Participation, Environmental Law and Collaborative Governance: Insights from Surface & Groundwater Studies' (2013) 30(1)  Environmental and Planning Law Journal 32. 12  N Rubenstein, P Wallis P, R Ison and L Godden, ‘Briefing paper: Water Governance Research Priorities’ ( Water Governance Research Initiative , 2010) 3; Ananda and Proctor, above n 6. 13  For a brief discussion of ASM regarding its possible application to Australian water metering and water accounting, see: Clare McKay and Alex Gardner, 'Water Accounting Information and Confidentiality in Australia' (2013) 41(1) Federal Law Review 127  , 158-159.  The analysis proceeds in five parts. Part one introduces the collaborative governance literature and international CWG examples. It highlights significant variations in CWG models, particularly in their use of regulatory standards. Part two outlines the ASM program. Part three examines the success and weaknesses of ASM, and argues that while ASM offers benefits of flexible water management, strong compliance and enforcement and greater ownership, it is also costly, confronts legitimacy challenges and has limited wide scale applicability. Part four reflects on the ASM findings and explores whether, how and under what conditions ASM would be a feasible approach for Australian water management. Part five concludes by identifying directions for further research and summing up our core argument: that while there are several obstacles to ASM’s widespread introduction, there are also several strengths in its approach, not least its capacity to deepen engagement of the agricultural community in water governance. II CWG LITERATURE CWG has emerged in a number of places since the 1980s, including in the early forms of Integrated Catchment Management and Integrated Water Resource Management. 14  Despite a very large body of literature on these forms of governing water, the literature has only begun to chart the new world of CWG. 15  Part of the reason that the CWG literature remains such rich soil for tilling is that the evolution of collaborative governance is ongoing, and it is taking many different forms around the globe. In many developing countries, international bodies such as the World Bank have widely promoted CWG under the term of Integrated Water Resource Management (IWRM). 16   Australia’s approach to CWG is embodied in the National Water Initiative, which sets out high-level planning principles and a vision of community involvement, but leaves it to each State and Territory to determine how best to undertake planning activities. 17  This has led to substantial experimentation at state levels, with various terminologies for plans that allocate water, including: Water Sharing Plans (NSW); Water Allocation Plans (South Australia); Water Resource and Resource Operations Plans (Queensland); Bulk Entitlements and Streamflow Management Plans (Victoria); and nested layers of Water Plans (Western Australia). 18  Despite these variations, at a general level, water plans commonly contain: rules for the allocation of water for consumption; rules for transferring water entitlements or allocations; environmental outcomes; limits on extraction in certain places or at certain times; and monitoring and reporting requirements. 19  Similar collaborative initiatives can also be found in other developed countries. In the United States, for example, CWG is found in watershed planning 20  and landowner 14   A Biswas, ‘Integrated Water Resources Management: Is It Working?’(2008) 24 Water Resources  Development   5. 15  L Bingham, ‘The Next Generation Of Administrative Law’ (2010) Wisconsin Law Rev 297. 16  R Lenton and M Muller,  Integrated Water Resources Management in Practice  (Earthscan, 2009).   17  COAG, Communiqué, Attachment A, Water Reform , (Australian Government, 1994) cls 6, 7; National Water Initiative (NWI),  Intergovernmental Agreement On A National Water Initiative (Australian Government 2004) paras 36, 38, 93 and 95. 18   PL Tan, K Bowmer and J Mackenzie, ‘ Deliberative Tools for Meeting the Challenges of Water Planning in Australia’ (2012b) 474  Journal of Hydrology 2. 19  J Gray, ‘The Legal Framework for Water Trading i n the Murray-Darling Basin: An Overwhelming Success?’ (2012) 29  Environmental and Planning Law Journal 328. 20  P Sabatier et al (eds), Swimming Upstream: Collaborative Approaches to Watershed Management   (MIT, 2005).  cooperatives. 21  In the European Union, it is expressed via increased engagement of stakeholders under the Water Framework Directive. 22  Finally, in New Zealand, there has been growing experimentation with water collaboration under the  Resource  Management Act 1991 (NZ). 23  While it is common to refer to the above approaches as falling under the ‘ sign ’  of CWG, it is also important to recognise that there are critical distinctions between their focus and institutional forms. 24  For example, CWG many focus on issues of water quantity and/or water quality. 25  The nature of collaboration also can vary according to the particular regulatory standards contemplated. This can include adopting, either exclusively or in various combinations, so called performance prescription and process standards in CWG approaches. In the case of a collaborative approach that pursues performance standards, such as setting and allocating an allowable water extraction or setting a particular level of pollutant, there may be differences in the scope for community and stakeholders to input into the individual target or allocation. 26  For instance, some CWG examples may set targets based on lengthy deliberation and consensus between stakeholders, while others may involve weaker forms of stakeholder consultation, with the government reserving the final say over the exact target. 27  If collaborative approaches employ prescription standards, stakeholders may be required to adopt particular technologies, for example, reticulated irrigation systems or water extraction meters. 28  However, variation may occur in required individual responses, ranging from strict obligations (e.g. a specified technology) to the use of best practice or equivalence provisions. In this case, as long as the stakeholders are able to satisfy or demonstrate to the regulatory authority that their technological solution is equivalent or better than the prescribed standards, it is deemed to be in compliance. Finally, there are process standards. Here, the regulatory standard itself may be viewed as being inherently collaborative in that it focuses on regulatory entities themselves establishing processes, which may include: goals and auditing and reporting particular to their circumstances. 29  In some instances, such as for water efficiency plans, process standards may also incorporate an element of performance 21  W Blomquist, T Heikkila and E Schlager, ‘Building the Agenda for Institutional Research in Water Resource Management’ (2004) 40(4)  Journal of American Water Resource Association 925.   22  E Louka, Water Law & Policy: Governance Without Frontiers  (Oxford University Press, 2008); C Staddon,  Managi ng Europe’s Water Resources. Twenty -first Century Challenges (Ashgate, 2009).   23  J Ruru, J Stephenson and M Abbott (eds),  Making Our Place: Exploring Land-use Tensions in  Aotearoa New Zealand, (Otago University Press, 2011); C Holley and N Gunningham, ‘Natural Resources, New Governance and Legal Regulation’ ( 2011) 24 New Zealand Universities Law Review 309. 24  B Karkkainen, “ Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism ” (2002) 21 Va Envtl LJ 189. 25  C Holley, N Gunningham and C Shearing, The New Environmental Governance  (Earthscan, 2011). 26  N Gunningham and D Sinclair, 'Policy Instrument Choice and Diffuse Source Pollution' (2005) 17  Journal of Environmental Law 51. 27   Tan et al above n 18; C Holley, ‘Removing the Thorn from New Governance’s Side: Examining the Emergence of Collaboration in Practice & the Roles for Law, Nested Institutions & Trust’ (2010) 40(7)  Environmental Law Reporter 10656. 28  C Holley and D Sinclair, 'Non- Urban Water Metering Policy: Water Users’ Views On Metering And Metering Upgrades In NSW' (2013) 16(2)  Australasian Journal of Natural Resources Law and Policy  101; Gunningham and Sinclair, above n 26.   29   E Orts, ‘Reflexive Environmental Law’  (1995) 89  Northwestern Law Review  1227; E Orts & C Coglianese, ‘ Collaborative Environmental Law: Pro and Con Debate’ (2007) 156 U. PA. L. REV. PENNUMBRA  289; Gunningham and Sinclair, above n 26.    standards whereby stakeholders identify opportunities for water use efficiencies that are quantified and submitted to the regulatory authority. Either way, process standards entail a level of communication and consultation between stakeholders and regulatory authorities, in the submission and approval of particular management plans. Beyond the standards adopted, CWG approaches also vary depending on the stages at which collaboration occurs in the policy cycle. Some collaborations may be one-off short term efforts (e.g. consultation with affected stakeholders about the broad parameters of a water plan), while others may involve significant long-term relationships and stakeholders commitments, including implementation and/or enforcement. 30  The latter issue of enforcement evidences particular variation across CWG, with traditional government regulators, stakeholders (e.g. a collaborative water user groups) and third parties playing different co-regulatory roles. Under co-regulation (and in contrast to pure self  -regulation) 31  a designated collaborative group could assume some of the compliance and enforcement functions of a government regulatory authority. Nevertheless, the government regulator may retain some degree of compliance and enforcement functions such as more formal and onerous sanctions, and reserve the right to step in if and when (and by invitation or independently) it considers non-compliance has occurred, in spite of collaborative enforcement efforts. 32  CWG approaches can also be underpinned by third party enforcement, where non-government organisations and private citizens, including members of environmental organisations, are given legal standing to take court action. For example, they may bring non-compliance to the attention of a court, such as in the case of exceeding extraction limits, and the court subsequently, in the event that non-compliance is proven, imposes punitive sanctions. Although not as common across Australia in the water quantity area, 33  third party standing is common in the United States of America. 34  There is still substantial work needed to better understand the relative advantages and disadvantages of these various forms and dimensions of CWG, and when and how each ‘works’ in practice. Against this backdrop, then, the following parts consider where ASM fits in a spectrum of possible approaches to CWG, and draws out the associated strengths and weaknesses. III FINDINGS  –   AUDITED SELF-MANAGEMENT Before critically evaluating the experience of ASM, it is necessary to understand the ASM model, its focus, policy context and approach to CWG. Our focus here is the collaborative model, its use of regulatory standards and nature of enforcement. The following discussion provides an overview of these features before turning to examine the experience of ASM in practice by drawing on 28 interviews with regulators and members of two ASM collaborative groups. 30   B Head, ‘Governance’  in P Saunders and H Walter (eds),  Ideas and Influence Social Science and Public Policy in Australia (UNSW Press, 2005) 57. 31  See e.g. E Ostrom, Crafting Institutions for Self-Governing Irrigation Systems  (ICS Press, 1992). 32  N Gunningham and D Sinclair,  Leaders and Laggards: Next Generation Environmental Regulation (Greenleaf Press, 2002). 33  See for example: open standing provisions in NSW under Protection of the Environment Operations  Act 1997   (NSW) s 252, 253. 34  R Kagan,  Adversarial Legalism: The American Way of Law  (Harvard University Press, 2001); Environmental Justice Australia, Water Citizenship, Advancing community involvement in water governance in Victoria  (EJA, 2015); C Holley, ‘Crafting Collaborative Governance’ (2015) April edition,  Environmental Law Reporter (forthcoming, accepted 23 October 2014).
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