Water use reform in Scotland: A critical analysis

Journal of Environmental Law

Volumn 18, Issue 3, 2006, Pages 375-406

  Clark, Bryan ^a  

^a UNIVERSITY OF STRATHCLYDE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL POLICY; POLICY REFORM; WATER MANAGEMENT; WATER USE;

EURASIA; EUROPE; SCOTLAND; UNITED KINGDOM; WESTERN EUROPE;

EID: 33750472306     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eql018     Document Type: Article

References (212)

1. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000, establishing a framework for Community action in the field of water, QJL 327, 22 December 2000, p 00001.
2. Water Environment (Controlled Activities) (Scotland) Regulations 2005, SSI 2005, No. 348 (hereinafter 2005 regulations).
3. And other regulatory tools.
4. The article does not discuss pollution issues relative to water use.
5. Given space constraints, the question of the legality of the new regime, primarily in terms of the state's human rights obligations under the European Convention on Human Rights, is not tackled in this article. This issue is tackled extensively by the author elsewhere - see B. Clark, 'Water Law in Scotland, The Water Environment and Water Services (Scotland) Act 2003 and the European Convention on Human Rights', 10 Edinburgh Law Review 60 (2006).
6. See, for example, the views of J. Rankine, Law of Landownership (W Green, Edinburgh, 1906, 4th edn) 511.
7. Stair Inst II, I, 5. See also Erskine Inst II, I, 5 and Bankton Inst I, 3, 2.
8. K. Reid, The Law of Property in Scotland (Butterworths, Edinburgh, 1996) para 274.
9. Ibid.
10. See Gaius's Institutes 2.2. It needs to be noted here that there is some Scottish authority which suggests that at least water which is percolating beneath the ground (not flowing in a defined channel) is the subject of ownership in situ - see, e.g., Rankine, supra n 4, at 513.
11. This viewpoint seems misconceived, however. For a further discussion of this issue, see B. Clark, 'Migratory Things on Land: Property Rights and a Law of Capture', Vol 6.3 (2002) EJCL, paras 4.14 and 4.15.
12. See Stair Memorial Encyclopaedia, Vol II, paras 540-546.
13. If the defined channel is below ground, then the person seeking to rely on riparian rights must prove this; the presumption being that all water below ground is percolating - see the Irish case of Black v Ballymena Township Commissioners [1886] 17 LR Ir 459 at 474-475, per Chatterton VC.
14. As Whitty has acknowledged, '[i]n terms of comparative law, the Scottish doctrine is very similar if not identical to the English doctrine of riparian rights ... The history of the Scottish doctrine of common interest however is very different from the history of the English doctrine of riparian rights. The latter emerged only in the second quarter of the nineteenth century when it replaced the previous orthodoxy, often called the doctrine of prior appropriation. By contrast the Scots law developed directly from the jus commune beginning in the early seventeenth century at latest and at no time received the English doctrine of prior appropriation', N. Whitty, 'Water Law Regimes' in K. Reid and R. Zimmerman (eds), A History of Private Law in Scotland, Vol 1 (OUP, Oxford, 2000) 451.
15. For an illuminating discussion of the English doctrine of riparian rights, see J. Getzler, A History of Water Rights at Common Law (OUP, Oxford, 2004), Chapter 3.
16. Young & Co v Bankier Distillery Co [1893] 20 R (HL) 76 at 78.
17. K. Reid, supra n 8, paras 287-288. The rights may be limited under the common law - e.g., by common interest, servitude, nuisance or public rights of navigation and additionally, in various ways by statutory intervention, including under the Flood Prevention (Scotland) Act 1961, Water (Scotland) Act 1980 and the Civic Government (Scotland) Act 1982. The abstraction regime is set to be radically shaken up by the Water Services and Water Rights (Scotland) Act 2003 to which the analysis of this article proceeds below.
18. Marquess of Breadalbane v W Highland By [1885] 22 R 307, per Lord Ordinary (Welwood) at 310;
19. Milton v Glen-moray Glenlivet Distillery Co Ltd[ [1898] 1 F 135.
20. Earl of Kintore v Pirie & Sons Ltd [1903] 5 F 818;
21. see also Rigby and Beardmore v Downie [1872] 10 M568.
22. W. Gordon, Scottish Land Law (W Green/SULI, 1999, 2nd edn) paras 7-32. Once the prescriptive right has been established, downstream riparians would not be able to object to the abstraction on the grounds of exhaustion of the source.
23. Chasemore v Richards [1859] 7 H.L.C. 349;
24. Milton v Glen-Moray Glenlivet Distillery Co Ltd [1898] 1 F 135, 6 SLT 5, 206;
25. Acton v Blundel [1843] 12 M & W 324;
26. Bradford v Pickles [1895] AC 587 HL. There is in fact a subtle distinction between drawing water from someone's land and stopping it from getting there.
27. For the purpose of this article, the distinction is in effect one without a difference but for a discussion of this issue, see Clark, supra n 10.
28. Whitty has noted that '[t]he development of the Scots law of water rights broadly follows the familiar three-stage pattern found in areas throughout Scots law: A first medieval reception of English (Glanvillian) law, followed by a reception of Roman law as developed in the European jus commune, followed by a second reception of English law beginning in the late eighteenth century'. It is of little surprise, therefore, that there are a number of marked similarities between Scottish and English water law, although at times variances in approaches can be seen - Whitty, supra n 13, 420.
29. Bradford v Pickles, supra n 19.
30. Ibid at 600.
31. Ibid at 601.
32. It is also rooted in the view that English law does not recognise the doctrine of abuse of rights. On abuse of right, see U. Mattei, Basic Principles of Property Law: A Comparative and Economic Introduction (Greenwood Press, Connecticut/London, 2000) 149.
33. Although the specific common law rule relative to groundwater by implication remains, such a general absolutist view of property is no longer prevalent in English law; witness the stream of positive law that has been enacted in the last century which has restricted land use in relation to such matters as planning and the environment. For a review of the shift away from traditional absolutism to the imposition of property obligationalism, see K. Gray and S.F. Gray, Elements of Land Law (Butterworths, London, 2001, 3rd edn), Chapter 10.
34. Reid, supra n 8, para 338;
35. compare with Bradford v Pickles supra n 19.
36. It may further be the case that water cannot be drawn away where this causes a collapse of support to adjacent land - see Bald v Alloa Colliery [1854] 16 D 870.
37. See Stair Memorial Encyclopaedia, Vol 14, paras 2034 and 2035;
38. Lord Kames, Principles of Equity (Kincaid & Bell, Edinburgh, 1800, 4th edn) 42;
39. J. Rankine, supra n 6, 381.
40. See, e.g., Bell, Principles, 964, 965.
41. Glassford v Astley 1808 M. Appx;
42. J Rankine, supra n 6, 383.
43. E.F. Murphy, 'The Recurring State Judicial Task of Choosing Rules for Groundwater: How Occult Still?', Nebraska Law Review 120, 121 (1987).
44. This view prevailed after a battle with a 'prior appropriation rule' that predated it. Scotland never embraced the prior appropriation approach, as it was influenced directly from the jus communes - see generally, Whitty, supra n 13.
45. L. Goodeve, The Modern Law of Real Property (Sweet & Maxwell, London, 1883, 1st edn) 5;
46. J. Gould, The Law of Water (Callaghan, Chicago, 1883, 1st edn) s 46, 105-03, s 265-267, 465-468.
47. Murphy, supra n 30, 121.
48. See Balston v Bensted [1808] 1 Camp 463.
49. In Acton v Blundell supra n 19. This term is misleading, however, and given that underground percolating water is probably best considered res nullius until reduced into possession, a more accurate albeit less eloquent term may be an 'absolute right to use'.
50. Chasmore v Richards, supra n 19, 147.
51. Murphy, supra n 30, 128. Although it should be recalled that the court in Acton v Blundell did note that under Roman formulations, the law did not impose liability where a landowner intercepted groundwater that flowed below his neighbour's land.
52. Murphy, supra n 30, 128.
53. Chatfield v Wilson [1856] 28 Vt. 49 at 54.
54. Frazier v Brown [1861] 12 Ohio St. 294 at 311.
55. This idea echoes the rational behind the development of the 'law of capture' in respect of oil and gas development in the late nineteenth century USA - see generally, Hemmingway, The Law of Oil and Gas (West Publishing, St. Paul, 1991, 3rd edn).
56. It should be noted though that the absolute dominium approach may not always be seen as one supporting industrial uses. In Chasemore, supra n 19, e.g., the case involved the determination of water rights between two competing industrial users. While the court's determination of an absolute dominium rule benefited the abstractor, it was, of course, not of benefit to the industrial user whose legitimate commercial activities were hampered when his water was drawn away from beneath his feet.
57. Efficiency' in terms of a legal regime is a somewhat nebulous concept, and its different denotations are discussed further below.
58. A parallel can be drawn here with the infamous oil boom and bust in the US nineteenth century - see Hardwicke, 'The Rule of Capture and its Implications as Applied to Oil and Gas', 13 Texas Law Review 391 (1935).
59. Including 'reasonable use', 'correlative rights' and 'prior appropriation' regimes. For a discussion of alternative regimes, see, e.g., G. Sherk, 'Eastern Water Law', 1 Natural Resources and Environment 47 (1986);
60. D. Tarlock, Law of Water Rights and Resources (Clark Boardman Callaghan, 2001).
61. The relationship between surface water and groundwater flows is classically set out in Darcy's Law - see the entry 'Henri-Phillibert-Gaspard Darcy' in Encyclopaedia Britannica, III Micropaeida (Encyclopaedia Britannica Inc, Chicago, 1974).
62. J.L. Sax, WaterLaw: Cases and Commentaries (Pruett Press, Boulder, 1965) 238.
63. A party seeking to rely on the fact that underground water moves in a defined stream is bound to prove this.
64. See generally, R.A. Dowling, Groundwater: Our Hidden Asset (UK Groundwater Forum, Wallingford, 1998).
65. N. Whitty, supra n 13, 468.
66. Available at http://www.sepa.org.uk/wfd/.
67. Including SEPA - see e.g., SEPA: 'State of the Environment, Water Quality Report': Part 1 (1996), available at http://www.sepa.org.uk/ publications/state_of/1996waterquality/report/text/watertext.htm.
68. Ibid.
69. S. Hendry, 'Enabling the Framework - the Water Environment and Water Services' (Scotland) Act 2003, 14 Water Law 16, 20 (2003).
70. In England and Wales, subject to certain exceptions, no party may abstract water from any source except in pursuance of a relevant licence granted by the water authority (the Environment Agency) [Water Act 1963 s 23; Water Resources Act 1991, s 24(1)] and in relation to groundwater, in general a party may not begin or cause any other party to begin to construct a well, or borehole, or work by which the water may be abstracted from the strata [1963 Act, s 23(2) (b)].
71. There are a few notable exceptions including water for public supply is abstracted under The Water Act 1908, s 17; water for hydroelectricity is abstracted under the Electricity Act 1989, schedule 5; and limited controls powers exist under the Natural Heritage (Scotland) Act 1991 to control abstraction for irrigation and in cases of drought.
72. At least by implication. Case-law dealing with water rights has been few and far between in Scotland, and there is relatively little academic discussion of such issues.
73. Water provision being a devolved rather than 'reserved' issue under the Scotland Act 1998.
74. Directive 2000/60/EC.
75. See A. Farmer, 'The EC Water Framework Directive: An Introduction', 12 Water Law 1 (2001).
76. Annex V of the Act sets out various parameters which will determine how the ecological status of a given water body can be identified.
77. The directive will also, inter alia, introduce a new, integrated approach to the control of pollution at source through the setting of emission limit values and of environmental quality standards for water.
78. There will be only limited exceptions to the requirement to meet good status in accordance with the time-table set out in the directive (by 2015), e.g., bodies of water which have been 'heavily modified' by human activity (e.g. those that have been artificially constructed or restricted). Further exceptions (wherein Members States may be given additional time to meet 'good status' detailed in Article 4) may be possible on a variety of other grounds that include technical problems, natural conditions and cost implications. Such exceptions may be important in that they may allow water regulation in Scotland room to manoeuvre, particularly in the light of industry concerns and potential human rights issues.
79. Water Environment (Controlled Activities) (Scotland) Regulations 2005, SSI 2005 No. 348 (which enter into force on 1 April 2006) (hereinafter 2005 regulations).
80. Scottish Executive Environment Group, Controlled Activities Regulations: A Consultation, Consultation Paper, April 2004 (Paper 2004/8).
81. See also Scottish Executive Environment Group, Controlled Environment Activities Regulations: Revised Proposals for General Binding Rules, March 2005 (Paper 2005/4);
82. Scottish Executive Environment Group, (Controlled Activities) (Scotland) Regulations 2004: Draft Regulations: Analysis of Responses to the Scottish Executive, 11 March 2005, available at http://www.Scotland.gov.uk/library/environment/twecar-07.asp.
83. Cited infra.
84. Scottish Executive Environment Group, The Future of Scotland's Waters - Proposals for Legislation, February 2002 (Paper 2002/4), para 1.2. Under s 3(1) of WEWS, the 'water environment' extends to 'all surface water ground water and wetlands'. Section 3(5) defines wetlands as 'an area of ground the ecological, chemical and hydrological characteristics of which are attributable to frequent inundation or saturation by water and which is directly dependent, with regard to its water need on a body of groundwater or a body of surface water'.
85. The Future of Scotland's Waters, supra n 67, para 1.2.
86. For a general discussion and critique of the river basin concept, see L. Teclaff, 'The River Basin Concept and Climate Change', 8 Pace Environmental Law Review 355 (1991).
87. SEPA has recently published a River Basin Management Planning Strategy to aid the development of river basin planning in Scotland and tackle such strategic issues as consultation arrangements, the integration of river basin planning with other regulatory requirements affecting the water environment and establishing effective and efficient administrative arrangements - see SEPA, River Basin Planning Strategy for the Scotland River Basin District, available at http://www.sepa.org.uk/wfd/rbmp/strategy.htm.
88. The Environment Act 1995, s 4 (2) gave the (English) Environment Agency powers to establish strategic water resource planning management.
89. WEWS, s 20 as amended by 2005 regulations, regulation 3.
90. Under WEWS, s 20(6) (as amended), an abstraction is 'the doing of anything whereby any water is removed or diverted by mechanical means, pipe or any engineering structure or works from any part of the water environment, whether temporarily or permanently, including anything whereby the water is so removed or diverted for the purpose of being transferred to another part of the water environment and includes (a) the construction or extension of any well, borehole, water intake or other work by which water may be abstracted, and (b) the installation or modification of any machinery or apparatus by which additional quantities of water may be abstracted by means of a well, borehole, water intake or other work'. Section 20(6) defines an impoundment in relation to surface water as '(a) any dam, weir or other works by which water may be impounded, (b) any works diverting the flow of water in connection with the construction or alteration of any dam, weir or other works falling within paragraph (a)'.
91. 2005 regulations, regulations 7-9.
92. 2005 regulations, regulation 5.
93. 2005 regulations, regulation 6.
94. This policy change was first mooted in the Scottish Executive Environment Group, Controlled Environment Activities Regulations: Revised Proposals for General Binding Rules, supra n 65.
95. It should be noted, however, that the Scottish Executive has expressed an intention to develop Private Water Supply Regulations under which local authorities would require to draw up a register of small abstractions (Scottish Executive, The Water Environment (Controlled Activities) (Scotland) Regulations 2005: Policy Statement and Regulatory Impact Assessment), May 2005, Paper 2005/10, 6.
96. 2005 regulations, regulation 7. A list of controlled activities and appropriate GBRs are set out in 2005 regulations, schedule 3.
97. Scottish Executive, Policy Statement and Regulatory Impact Assessment, 2005, supra n 77, 7.
98. Ibid at 9.
99. Ibid at 10.
100. 2005 regulations, regulation 8.
101. Scottish Executive, Policy Statement and Regulatory Impact Assessment, 2005, supra n 77, 9.
102. Ibid at 9.
103. 2005 regulations, regulation 9.
104. Scottish Executive, Policy Statement and Regulatory Impact Assessment, 2005, supra n 77, 9.
105. 2005 regulations, regulation 9(2).
106. Scottish Executive, Policy Statement and Regulatory Impact Assessment, 2005, supra n 77, 10.
107. Ibid at 9.
108. That may be augmented by specific local licence conditions.
109. Controlled Activities Regulations, supra n 65, para 3.15.
110. 2005 regulations, regulation 11.
111. 2005 regulations, regulation 15.
112. 2005 regulations, regulation 9(5) (b).
113. Scottish Executive, Policy Statement and Regulatory Impact Assessment, 2005, supra n 77, 13.
114. Ibid at 18-19.
115. Additionally, transitional application charges apply for the period from 1 July 2005 to 31 March 2006 in respect of the transfer of current unregulated activities to authorisations under the new regime - see SEPA, Consultation on Water Environment (Controlled Activities) Fees and Charges (Scotland) (Transitional) Scheme, 2005.
116. Although such an approach can be ignored if it does not compromise the general aims of the directive.
117. Wouters suggests that 'in essence there are four key points that must be addressed [by a water governance regime]...: (i) legal entitlement (what is the scope of the resource and who is entitled to use it?); (ii) framework for allocation (where all needs cannot be met, who is entitled to what quantity or quality of the resource?); (iii) institutional mechanisms including governance issues (who is responsible for overseeing the implementation or overseeing the implementation of the laws?), and (iv) compliance verification, dispute avoidance and resolution (how are rights and obligations enforced?)' - P. Wouters, 'Water Law: Achieving Equitable and Sustainable Use of Water Resources (Guest Editor's Note)'. Paper presented at the Dundee Water Law and Policy Seminar (July 2000), available at http://www.dundee.ac.uk/law/ iwlri/Documents/Research/IWLRI%20Team/Wouters/iwra.pdf.
118. Caponera, e.g., rejects the notion of a universally applicable regime because such a model would 'depends not only on its historical, cultural, religious, geo-physical and legal factors, but also on the political will to undertake ... needed administrative or institutional reform' - D.A. Caponera, Principles of Water Law and Administration (A.A. Balkema, Rotterdam/Brookfield, 1993) 175.
119. Which may be manifest in various ways as explained below.
120. As noted at the beginning of this article, the issue of legality is not tackled here.
121. Section 22 of the 2005 regulations will allow transfer of licence authorisations where SEPA is satisfied any transferee is a responsible person and will ensure compliance with the terms of the authorisation and any conditions to that effect. Given that registration under regulation 8 is activity specific, activities subject to this tier of authorisation should be able to be traded without any regulatory intervention.
122. Although as a personal right, it would not survive a change in ownership.
123. See Gordon, supra n 18, para 7-83.
124. Although if a licence is for a limited period of time or may be revoked without compensation, then trading becomes less attractive. This point is discussed below.
125. This situation also raises the possibility of conflict between different licensees. Moreover, the costs of generating this knowledge - passed on to all users - may counterbalance any efficiency gains.
126. A. Gregory, 'Groundwater and its Future: Competing Interests and Burgeoning Markets', 11 Stanford Environmental Law Journal 229, 249 (1992)
127. See, e.g., Morriss, Yandle and Anderson, 'Principles for Water', 15 Tulane Environmental Law Journal 335, 336 (2002).
128. In strict terms, a 'public good' is one that is both public and indivisible in that it cannot be shared amongst the public in the sense that some may have access to it while others are denied such access and it is rather shared freely (although not necessarily equally) between the group - see T.L. Anderson and P. Snyder, Water Markets: Priming the Invisible Pump 113-114 (1997).
129. While water resources are not strictly public goods in this sense, nonetheless given the resource's importance to human and other life, and its migratory characteristics, it can be considered as such - J. Dellapena, 'The Importance of Getting Names Right: The Myth of Markets for Water', 25 William and Mary Environmental Law and Policy Review 317, 329 (2000);
130. J.L. Fortuna, 'Water Rights, Public Resources and Private Commodities: Examining the Current and Future Law Governing the Allocation of Georgia Water', 38 Georgia Law Review 1009, 1015-1016 (2004).
131. See, e.g., C. Landry, 'Buy that Fish a Drink: The United States'Approach to Environmental Protection in an Era of Water Marketing', 12 Water Law 240 (2001).
132. See, for example, C. Bauer, 'Slippery Property Rights: Multiple Water Uses and the Neoliberal Model in Chile 1981-1995', 38 Natural Resources Journal 109 (1998).
133. Reference can be made to the discussion of trading in western US states in N.K. Johnson and C.T. DuMars, 'A Survey of the Evolution of Western Water Law in Response to Changing Economic and Public Interest Demands', 29 Natural Resources Journal 347 (1989).
134. See L. Godden, 'Water Law Reform in Australia and South Africa: Sustainability, Efficiency and Social Justice', 17 Journal of Environmental Law 181 (2005).
135. Dellapenna, supra n 109, 324.
136. DETR, Economic Instruments in Relation to Water Abstraction: A Consultation Paper (April 2000), available at http://www.defra.gov.uk/ environment/consult/ecowater/pdf/ecowater.pdf.
137. Section 35, Water Resources Act 1991 (hereinafter WRA).
138. The Environment Agency listed a number of ways that trades could take place under the English system: (prior to the coming into force of the Water Act 2003) 1, outright disposal of the land on which abstraction takes place; 2, renting or leasing the land; 3, relinquishing the licence while continuing in possession of the land, then granting occupational access to the land to another who may then apply for the licence; 4, by varying the licence to cover a small quantity then granting rights of access to the land to another; 5, selling the whole or part of the abstracted water to other users; and 6, first entering into an agreement to relinquish a licence for payment and then applying for a new licence on other land in the vicinity of the original licencesee DEFRA, Tuning Water Taking - Government Decisions Following Water Consultation of the Economic Instruments in Relation to Water Abstraction (June 2001), Appendix 2.
139. The bulk of the Water Act 2003 has now come into force although certain provisions will be phased in up to 2008. Even the new relaxed approach here may hold significant transactional costs. For example, witness the experience in other contexts with 'ransom strips' - wherein a previous owner may have retained ownership of a small strip of the land concerned to either profit from or control its future development - see P. Finch, 'Ransom Strips and Public Rights of Way', 14 Rights of Way Law Review 1 (1999).
140. 2005 regulations, regulation 9. In respect of those activities subject to registration, the trading of authorisations will not require any regulatory intervention whatsoever; registration being granted in respect of authorised activities (2005 regulations, regulation 9).
141. Section 46(4) WRA.
142. Which amended s 46 (4) WRA. This approach is not without its drawbacks, however. In particular, there is a need to countenance the fact that the environmental impacts of abstraction may be site specific.
143. The current regulator for water abstractions in England and Wales.
144. The Environment Agency response to Tuning Water Taking, supra n 106, para 4-1.
145. Ibid. It was noted above that water markets where they do arise tend to be manifested across small localities rather than on a national scale.
146. Katz v Walkinshaw 74 P 766, 772 (Cal 1902).
147. The Environment Agency response to Tuning Water Taking, supra n 117.
148. For a discussion, see C. Arnold, 'Working Out an Environmental Ethic: Anniversary Lessons from Mono Lake', 4 Wyoming Law Review 1 (2004).
149. R.H. Coase, 'The Problem of Social Cost', 3 Journal of Law and Economics 1 (1960).
150. Dellapenna, supra n 109, 372
151. regulations, regulations 19-21 (variation); regulation 26 (suspension and revocation). There is also a general obligation placed upon SEPA to 'periodically review' authorisations - regulation 18.
152. Normally twelve years.
153. P. Carty, 'Water Trading in England and Wales - Can We Buy that Fish a Drink', 12 Water Law 338, 347 (2001).
154. Dellapenna, supra n 109, 336.
155. See, e.g., E. Behrens and M. Dore, 'Rights of Landowners to Percolating Groundwater in Texas', 32 South Texas Law Review 185 (1991);
156. T. Henderson, J. Trauberman and T. Gallagher, Groundwater Strategies For State Action 2 (Environmental Law Institute, Washington, 1984) 31;
157. Moses, 'Basic Groundwater Problems', 14 Rocky Mountain Mineral Law Institute 501 (1969);
158. K. Norris, 'The Stagnation of Texas Ground Water Law: A Political v Environmental Statemate', 22 St. Mary's Law Journal 493 (1990);
159. P. Kletzing, 'Imported Groundwater Banking: The Kern Water Bank - A Case Study', 19 Pacific Law Journal 1225 (1988).
160. R.C. Ellickson, Order Without Law (Harvard University Press, Cambridge, MA, 1991).
161. Having said that there in an inherent tension between providing certainty, so that people can organise their affairs with some confidence about the legal consequences of their actions and retaining enough flexibility to provide fairness in particular circumstances for deserving parties - L. Tee, 'Introduction' in Land Law Issues, Debates, Policy (Willan, Colompton, 2002) 2.
162. U. Mattei, supra n 24, 65.
163. In terms of administrative fees.
164. As noted above, the absolute dominium approach benefits from being subject to low transactional costs. There are a few cases in this respect discussed in W. Gordon, supra n 18, paras 7.29 and 7.40.
165. Appeals in relation to such decisions taken by SEPA as well as determinations pertaining to the granting or otherwise of particular authorisations by SEPA and any conditions attached thereto may be made to Scottish Ministers - see 2005 regulations, regulations 46-49.
166. Controlled Activities Regulations, supra n 65, paras 1.17 and 1.20.
167. regulations, regulation 9.
168. Although this is not to suggest that negotiation or mediation should be compulsory. Such a move would, in effect, deny parties the right to assert their legal rights. Nonetheless, a culture of voluntary ex ante dispute resolution could be fostered. The presence of a third party neutral or 'mediator' has been seen as a useful catalyst to the resolution disputes in a range of conflict areas - see, e.g., R. Mays and B. Clark, Alternative Dispute Resolution in Scotland (Scottish Office, CRU, 1999).
169. It is also worth noting here that evidence from US licence-based regimes suggests their 'use it or lose it' characteristic encourages overuse of the resource, because abstractors are reluctant to hold back on exploitation of the resource and perhaps lose their licence after a challenge from other would-be abstractors [see, e.g., S. Harrison, 'The Historical Development of Nevada Water Law', 5 University of Denver Water Law Review (2001) 148, 182]. For England and Wales, the Water Act 2003 reduces the period of inactivity which would trigger possible revocation of the licence from seven to four years. The 2005 regulations are silent on this issue, but it will be interesting to see what position SEPA takes in this regard when the licensing regime is up and running.
170. See Bald v Alloa Colliery [1854] 16 D 870 and compare with Popplewell v Hodgkinson [1869] Exch LR 248.
171. The perennially 'wet' nature of Scotland may render such concerns as encouraging and protecting beneficial uses in society of less importance than in more and nations. This issue is discussed in more detail at the end of this article.
172. Such as Nevada, Kansas, Idaho and New Mexico. Nevada is the driest state in the USA with annual rainfall on average a mere 9 inches, with some part of the state receiving only four or less - Nevada Division of Water Planning, Nevada Water Facts, available at http://www.state.nv.us/cnr/ ndwp/wat-fact/precip.htm.
173. Save that an unrestricted right to take water for such uses may develop by prescription.
174. Under Article 4.
175. Given the general surplus of water resources in Scotland, the focus of the regime is rather one which seeks to prohibit unsustainable activities in respect of particular water bodies rather than the advancement of the most beneficial uses as such. Given shifts over time in either increased water scarcity or increased demand for water, the regime's emphasis could be shifted to one more explicitly ensuring beneficial uses.
176. Dellapenna, supra n 109, 367-368.
177. For a US example, see the Regulated Riparian Model Water Code (J.W. Dellapenna, ed., 1997) at 6R-2-01 to 6R-2-08.
178. Such issues where discussed above under 'efficiency'.
179. An issue perhaps mirrored in commercial law, where courts are not keen to intervene in business matters.
180. Dellapenna,supran 109, 368.
181. Moreover, unlike regulatory regimes, in respect of the development of policy, a common law system often shifts in a fragmented and piecemeal fashion, as it is reliant on parties bringing cases to the courts (and largely on parties' pleadings) for new principles to be developed. A useful discussion of this phenomenon in the USA can be found in Morriss, Yandle and Anderson, supra n 97, 355-356.
182. See, e.g., L. Teclaff, 'Evolution of the River Basin Concept in National and International Water Law', 36 Natural Resources Journal 359 (1996).
183. For examples of such international approaches, see International Law Association, Report of the Forty-Seventh Conference 242 (1956) (held in Dobrovnik);
184. Report of the Fifty-Second Conference Held at Helsinki, 1966, at 484, International Law Association (1966), reprinted in ILA, Helsinki Rules on the uses of the waters of international rivers (1967).
185. Although some voluntary catchment planning schemes and a 'shadow River Basin Management Plan' have previously been put in place - see S. Hendry, 'Enabling the Framework - The Water Environment and Water Services (Scotland) Act 2003', 14 Water Law 16 (2003).
186. As has been noted, England and Wales, e.g., have for some time operated a licence-based approach to water usage.
187. 2005 regulations, regulations 27-31.
188. R.E. Meiners et al, 'Burning Rivers, Common Law, and Institutional Choice for Water Quality' in R.E. Meiners and A.P. Morriss (eds), The Common Law and the Environment (Rowman & Littlefield, 2000) 69-83.
189. Article 14.
190. Water - Key to Sustainable Development: Recommendations for Action, International Conference on Freshwater, Bonn, December 2001, at action no. 12. The report can be ordered from http://www.iwapublishing.com/ template.cfm?name-iwapwst.
191. WEWS S 21 (1).
192. The Consultation period ended in 9 July 2004.
193. A. Allan, 'A Comparison Between the Water Law Reforms in South Africa an Scotland: Can a Generic National Water Law Model be Developed from these Examples?', 43 Natural Resources Journal 419, 484 (2003).
194. WEWS s 17(1). Arrangements in this regard have recently been fleshed out by SEPA by the establishment of a national advisory group comprising SEPA and a number of other stakeholders and regulators such as Scottish Natural Heritage, Scottish Water, local authorities, port authorities, NGO's and industry representatives. In addition, eight area advisory groups, comprised of local stakeholders and water users, shall feed into the river basin planning process - see SEPA, supra n 69, paras 2.1-2.8.
195. See, e.g., the Bonn Recommendations, supra n. 162
196. Stockholm Statement, supra n 162.
197. Scottish Executive Environment Group, The Future of Scotland's Waters - Proposals for Legislation February 2002 (Paper 2002/4), para 1.25.
198. See, e.g., principle 1 of the Stockholm Statement supra n 162.
199. F.A. Hayek, 'The Use of Knowledge in Society', 35 American Economic Review 519 (1945).
200. Morriss, Yandle and Anderson, supra n 108, 339.
201. 2005 regulations, regulations 46-49.
202. 2005 regulations, schedule 9, regulations 10-18. Some disputes may be resolved by written submission however - see schedule 9, regulations 20-25.
203. H. Bruff, 'Specialized Courts in Administrative Law', 43 Administrative Law Review 329 (1991).
204. Morriss, Yandle and Anderson, supra n 108, 360.
205. Although the Scottish whisky industry later pledged to work together with SEPA in respect of their obligations under the water directive, see http://www.sepa.org.uk/news/releases/2001/sepapr2901.html.
206. An ancillary point that might be made here is that given that regulation powers will remain with the Scottish Executive rather than SEPA, the possibility of political expediencies taking precedence over more environmentally sound policy may act to undermine confidence in the regime - See A. Allen, supra n 165.
207. A comparable example may be the regulatory capture of the US patents system by the legal profession - see, e.g., B. Kahin, 'The Paradox of Private Legislation: Business, Economic and Political Effects of Patents on Information Processes' in Is Software Patentability Necessary Conference (European Parliament, 2002), available at http://www.greens-efa.org/pdf/documents/SoftwarePatenting/TextKahin.pdf.
208. Although the problem of regulatory 'capture' in this regard of dispute resolution processes and other aspects of the post-WEWS regime was noted.
209. With the notable exception of Texas.
210. Kletzing, supra n 134.
211. Murphy, supra n 30. Although with a de novo regime, different interpretations of 'reasonable uses' could be determined.
212. Moreover, human rights issues engendered by this issue may lead to challenges against the regulator and lead to the undermining of the regime, see B. Clark, supra n 5.