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V.4 Regulation, Compliance and Implementation Options
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Document date: August 1999
1.0 MAIN ISSUES 1. Controversies over dams have contributed to the proliferation of novel regulations, criteria, guidelines and standards in order to improve water resources development and management over the last two decades. Many stakeholders argue that quite adequate internationally accepted criteria, guidelines, and standards currently exist but are just not implemented or complied with. Others counter that criteria, guidelines and standards are still weak because they are neither comprehensive nor integrated enough to offer a clear and applicable decision-making framework throughout the planning and project cycles for dams and alternatives. Finally, there is the question of whether or not there can or should be internationally harmonised as opposed to diversified national sets of laws, regulations, criteria and guidelines. 2. Different institutions (government departments, donor agencies, private funders and builders, nongovernmental organisations) have dissimilar sets of principles and procedures, overlapping mandates and different priorities; this often creates a context that can lead to conflicts and delays in dams-related decision-making and execution within a particular country or region. In particular, it is often argued that criteria and guidelines that give various options (dams and alternatives) an equal and fair chance of been selected and implemented or that ensure the effective participation of project-affected peoples in dams-related decision-making processes remain underdeveloped. 3. Routinely, investors seek basic assurances and legal protection, stable government policies, a clear definition of rights and obligations of all parties. The presence or absence of an adequate legal and regulatory framework is one of the key elements influencing developer and lender decisions on long-term infrastructure investment. Regulations that protect the interests of investors, government and public, and consider various types of project risks are evolving, covering subjects that range from investment laws to labour practices to banking rules. In the last decades, legal and regulatory systems are also evolving to deal with the broader environmental and societal issues related to dams. Legislation on water resources use and management, environment, land tenure, expropriation and compensation, concessions for the use of natural resources might be lacking, incomplete or contradictory. Agreements might not be in place to share common transboundary resources in river basins. 4. While existing regulations may or may not be perfect, lack of compliance with and implementation of these laws, policies and procedures may undermine the sustainable development and management of water and energy resources even more. Weak implementation results not only in the poor performance and development ineffectiveness of dams and alternatives, it also fosters greater criticism and opposition to whatever option is chosen. 5. Compliance and implementation depend on a number of factors such as capacity (human, financial, institutional), conducive policy and institutional frameworks, enforceable sanctions, compelling incentives, efficient monitoring systems, well defined and appropriate stakeholder responsibilities throughout the full planning and project cycles. The success of implementation is likely to be further conditioned by the type of governance systems and legal frameworks as well as human and financial resources that exist for options-assessment, decision-making and execution of dams and alternatives. 6. The 45,000-plus existing large dams represent a particular challenge for the implementation of regulations. In many cases, the operation of these dams focused solely on the delivery of the planned/expected services, be these hydropower or irrigation, etc. The environmental and social dimensions of these projects, as well as their potential for local and regional development have been sorely neglected. Although these dams might have been compliant with the regulations at the time they were built, the evolution of the social and environmental policies would require an adaptation of these projects to evolving societal goals. Also, the enhanced knowledge about river basins, cumulative impacts and emerging issues such as the impact of climate change on hydrology might require an adaptation of the operation of existing dams. Moreover, the implementation of resettlement and environmental management plans has fallen short of achieving their stated objectives, and might require a thorough review and rehabilitation actions. 2.0 SCOPE OF WORK 7. This thematic review will examine the principles and procedures with regard to dams-related decision-making promoted by states, international organisations, the private sector, and nongovernmental organisations and identify strategies for strengthening the capacity, transparency and accountability of institutions involved with the enforcement of these criteria, guidelines and standards. Although recognising the importance of a comprehensive and adequate legal framework in creating a business environment conducive to attract investment, this thematic review will focus primarily on the aspects related to the public interest, in particular the use and management of common goods and the human and citizen rights, such as: water resources use and management, environment, land tenure, expropriation and compensation, concessions for the use of natural resources, etc. 8. This thematic review aims at:
This thematic review will include the following components: 9. Overview of existing criteria, guidelines and standards: An assessment of the development, coverage, potential gaps, applicability and level of integration of the existing criteria, guidelines and standards governing dams and their alternatives for the sustainable development and management of water and energy resources throughout the planning and project cycles will be conducted. This synthetic overview will focus on a selection of existing regulations, chosen according to:
10. This overview will cover issues such as: concessions for building, operating, and decommissioning of dams; environmental laws (including environmental & social assessment); water allocation and management; ownership rights (land tenure, expropriation, water rights, etc.); human and citizenship rights (e.g. right to appeal, etc.); regulations governing international rivers. 11. Basic Legal and Regulatory Framework : The results of the overview will be analyzed to propose the minimum requirements in terms of laws and regulations that should be in place to provide an adequate framework for dam construction and operation. It will propose recommendations on how issue-oriented criteria, guidelines and standards can be linked and integrated throughout the planning and project cycles of dams and alternatives. This component will also explore the potential for the adoption of voluntary standards by the dam industry, at the example of the ISO 14000. 12. Transparency and accountability: This component will focus on how to ensure transparency in the decision making process, through adequate procedures, codes of conduct, systematic disclosure of information, consultation and participation, etc. In particular, it will explore ways to establish effective and transparent monitoring systems for dam projects, based on agreed criteria and standards, transparent and efficient procedures (e.g. self-monitoring with independent verification, stakeholders' monitoring, etc.) and effective feedback into decision-making and management of dams. 13. Incentives for compliance, self-regulation and implementation: An important mechanism to foster compliance and implementation is to create positive incentives. A number of innovative proposals are emerging, and this component will focus on exploring their potential application, advantages and shortcomings. These include:
14. Building institutional capacity for implementation: this component will focus on identifying strategies for strengthening human, financial and institutional capacity of the various stakeholders, and exploring their roles in increasing the likelihood of compliance and implementation with laws and regulations, criteria and guidelines. Aspects to be analyzed include the institutional framework (including coordination); the institutional capacity (technical, managerial and financial resources); mediation and appeal instances at the national and international levels; financing mechanisms, etc. 15. In particular, the potential roles and responsibilities of the international community in implementing the criteria, guidelines and standards promoted by WCD will be explored, including:
3.0 LINKAGES 3.1 Linkages to Case Studies and Cross-Check Survey 16. Other activities in the WCD Work Programme also focus on criteria, guidelines and standards. For example, the existence of and compliance with criteria and guidelines governing the focal dams will be examined in the case studies. The historical change between the criteria and guidelines that governed the focal dams and the most recent projects within a particular river basin will also be examined in the focal dam/river basin case studies. In addition, the sample and questions of the cross-check survey have been tailored to generate broader patterns and trends on the evolution of criteria, guidelines and standards governing dams overtime around the world. 3.2 Linkage to other Thematic Reviews 17. This thematic review will interact with and build upon the findings of the other thematic reviews with respect to criteria, guidelines and standards as well as issues of compliance and implementation in their areas of focus. For example, the thematic reviews on indigenous peoples, resettlement, ecosystems, global change, options, and institutions will examine regulation, compliance and implementation in their respective issue areas. But a systematic analysis that effectively links the principles, policies and procedures in different issue areas throughout the planning and project cycles for dams and alternatives requires a separate, stand alone thematic review. 3.3 Linkage to Outputs 18. This thematic review will contribute to all three WCD outputs, but particularly to the framework for options assessment and decision-making processes and proposed criteria, guidelines and standards where appropriate. The assessment of past experience with criteria, guidelines and standards will contribute to the lessons learned component of the Global Review. The findings on methods, tools, mechanisms, and procedures for improving the likelihood of compliance and implementation will directly contribute to the WCD’s framework for options-assessment and decision-making process output. 19. One of the three key outputs of the WCD is a set of internationally accepted criteria, guidelines, and standards for the planning, appraisal, design, construction, monitoring, operation and decommissioning of dams. In order to deliver this output, a synthetic overview of the existing criteria and guidelines around the world must first be assembled which is one of the components of this thematic review (in conjunction with other thematic reviews – see above). The thematic review will also identify ‘state of the art’ criteria, guidelines and standards and ways to incorporate them into a meaningful policy framework to assist the WCD in determining what type of recommendations (in terms of content, level of specificity, etc.) to propose in its final report. 4.0 IMPLEMENTATION ARRANGEMENTS 4.1 Suggested Approach 20. The proposed approach for the preparation of this thematic review has to take into consideration the complexity and extension of the subject. In this case, the Secretariat will take a more active role in co-ordinating this thematic review because of its complexity in terms of the degree of interaction with the WCD case studies, cross-check survey, and other thematic reviews. Therefore, the writing on this review paper will be organised in four stages, as follows:
4.2 Review Panel 21. Members of a panel that will review the draft final paper will include:
4.3 Timeframe 22. The preparation of some of these components could in mid-August, 1999, as some of the consultants have already been identified. The dates proposed below indicate the deadlines for the completion of each specific task for all the components:
Copyright © 1998-2001 The World Commission on Dams |
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