Environmental Flows Legislation and Regulations in Foreign ...

Applied Mechanics and Materials Vols. 295-298 (2013) pp 2181-2186 Online available since 2013/Feb/13 at www.scientific.net © (2013) Trans Tech Publications, Switzerland doi:10.4028/www.scientific.net/AMM.295-298.2181

Environmental Flows Legislation and Regulations in Foreign Countries and the Enlightenment to China Changchun Chen 1,2,a, Lachun Wang1,b, Xuezhang Cao 3,c and Jie Song 4,d 1

School of Geographic and Oceanographic Sciences, Nanjing University, Nanjing,Jiangsu,210093, China

2

3

School of Remote Sensing, Nanjing University of Information Science & Technology, Nanjing,Jiangsu, 210044, China

Nanjing Institute of Environmental Sciences of the Ministry of Environmental Protection of China, Nanjing, Jiangsu, 210042, China 4

Department of Geography, College of Liberal Arts and Sciences, Northern Illinois University, DeKalb, IL 60115,USA

a

[email protected], [email protected], [email protected], [email protected]

Keywords: Environmental Flows, Legislation, Regulations, Foreign Countries, China.

Abstract. Environmental flow is a key factor to protect river ecological system, however, there is no international agreement concerned with environmental flows exclusively so far. This paper demonstrated the importance and urgency of environment water demand in the world and presented summary and analysis of environmental flows legislation and regulations. Europe and other countries have been investigated and compared systematically. At last, specialized legislative proposals were provided for protection of aquatic ecosystems and their environment in China. Introduction Rivers play very important roles in the evolution and development of the human society. However, due to the fast increase of population, overuse of water and a number of hydraulic constructions, some obvious or potential negative impacts on the aquatic ecosystem of the river have occur: declination or disappearance of native fish species, invasion of the alien species, and degeneration of river ecological systems. Environmental flows, as a key factor to protect river ecological system, some countries in the world have come to realize their value. There is not unified definition on environmental flows yet. According to Flow–The essentials of environmental flows: “An environmental flow is the water regime provided within a river, wetland or coastal zone to maintain ecosystems and their benefits where competing water uses are existing and where flows are regulated” [1]. “Environmental flows can be defined as the amount of water left in the river to continue providing the services from the water ecosystem and maintain the integrity of the river”[2] . Environmental flows are sometimes called environmental flow, but they demonstrate approximately the same meaning, we use both of them with real usage. Environmental flows also have another name in different countries, such as in stream flow, reserved flow etc. At the national level of law, existing national legislation has not yet established a clear and systematic set of rules legitimizing the provision of water for environmental flows in most countries. Only a limited number of countries have so far recognized the importance of non-consumptive uses of water and have developed specific legislation to provide for it. Currently, there is no international agreement specifically concerned with environmental flows. Legislation of environmental flows in some countries have made achievements or taken the initiative.

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Legislation and Regulations of Environmental Flows in European Countries Legislation and Regulations of Environmental Water in European Union (EU). The EU Water Framework Directive (WFD) was approved in December 2000.The WFD, the cornerstone of EU’s water legislation, is in the course of being implemented in the countries of the EU. Its purposes is to establish a framework for the protection of all waters which prevents further deterioration and protects and enhances the status of aquatic and dependent terrestrial ecosystems[3]. Addition to water quality, WFD explicitly claim requirements on the amount of water, which takes into account for the first time the integral connection between quality and quantity of water. In the beginning part of WFD, it indicated that Common principles are needed in order to coordinate Member States' efforts to improve the protection of Community waters in terms of quantity and quality, to promote sustainable water use, to contribute to the control of trans boundary water problems, to protect aquatic ecosystems, and terrestrial ecosystems and wetlands directly depending on them, and to safeguard and develop the potential uses of Community waters [4]. Although the WFD does not explicitly mention environmental flows, it is generally accepted that ecologically appropriate hydrological regimes are important to meet this status, and implementing environmental flows will be a key measure for restoring and managing river ecosystems [5]. Legislation and Regulations of Environmental Flows in France. French is one of first countries which give quantitative restriction for Environmental flows in legislation. The French Freshwater Fishing Law of 1984 introduced some habitat regulations. The principle of an equilibrium between water uses and hydro-system integrity appears as a fundamental basis of this legalization. Under the law different items provide for better habitat protection: legal minimum flow (1/40 ADF (Average Daily Flow) below dams built before the law, 1/10 ADF for new dam buildings or for relicensing) [6]. According to Article L432-5 of French Environmental Code of 2000:[7] “Any structure to be built in a riverbed must include devices ensuring that a minimum flow is guaranteed over this bed to sustain life, circulation and the reproduction of the species that populate the waters at the time the structure is built, as well, should the need arise, as devices to prevent fish entering into inlet or escape ducts. This minimal flow must not be less than one tenth of the water course module in line with the structure, corresponding to the average inter-annual throughput, assessed on the basis of available data relating to a minimum period of five years, or on the throughput immediately upstream of the structure, if this is less. Nevertheless, for water courses or sections of water courses where the module is higher than 80 cubic meters per second, decrees approved by the Conseil d'Etat may, for each one, set a lower limit for this minimal throughput, which should not be lower than one twentieth of the module. The operator of the construction is obliged to ensure the operation and maintenance of the devices guaranteeing the minimal flow through the river bed as defined in the previous paragraphs. ” French Environmental Code of 2010 renamed article L432-5 into new article L214-18, and made some amendments [8]. Legislation and Regulations of Environmental Flows in the United Kingdom. The United Kingdom is one of the countries which concerned about the ecological water demand. As early as in the 1963 Water Resources Act, there are provisions on “minimum acceptable flows” [9]. Since then, the minimum acceptable flows system have been maintaining and improving. The current legislation which includes Environmental flows is the Water Resources Act 1991, the Section 21 “Minimum acceptable flows” is: (1) The Agency (i.e. “the National Rivers Authority”) may, if it thinks it appropriate to do so, submit a draft statement to the Secretary of State containing, in relation to any inland waters that are not discrete waters; (a) Provision for determining the minimum acceptable flow for those waters;

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(b) Where any provision for determining such a flow is for the time being in force in relation to those waters, provision for amending that provision or for replacing it with different provision for determining the minimum acceptable flow for those waters. (2) The provision contained in any statement for determining the minimum acceptable flow for any inland waters shall, in relation to the inland waters to which it relates, set out; (a) The control points at which the flow in the waters is to be measured; (b) The method of measurement which is to be used at each control point; (c) The flow which is to be the minimum acceptable flow at each control point or, where appropriate, the flows which are to be the minimum acceptable flows at each such point for the different times or periods specified in the statement. Especially Schedule 5 of the Water Resources Act 1991 formulate the procedure relating to statements on minimum acceptable flow, presented the detailed, and operational requirements. Legislation and Regulations of Environmental Flows in Germany. Germany is rich in water resources. Owing to its favorable climatic situation, water quantity problems are uncommon in Germany. Before 2010, there is not uniform and compulsory national provision on environmental flows, for meeting the demand of WFD. The Germany Act on the Regulation of Matters Relating to Water (Federal Water Act-WHG), which entered into force on 1 March 2010, recodifies Germany’s water legislation on the basis of the extended legislative powers granted to Federal Government under the Federalism Reform. WHG set target of the minimal flow for ecological consideration. This is a breakthrough in environment water protection historically in Germany. Legislation and Regulations of Environmental Flows in Switzerland. Although Switzerland is not a member of the European Union, which does not need to comply with WFD, it also possess a set of distinctive Environmental flows systems. The Swiss Water Protection Act establishes specific minimum flow values for different average flow rates, which must be maintained or increased in certain cases, depending on geographic and ecological factors. The Swiss Residual Water Regulations indicated that the assurance of adequate residual flow in a watercourse is necessary for the preservation of biodiversity in animals and plants that are dependent on rivers, and for the conservation the native fish populations and their propagation and landscape diversity [10]. The Swiss Water Protection Law (GSchG, in force since 1992) also regulates the minimal residual flow for all watercourse sections in the Article 1 of The Swiss Water Protection Law. The purpose of the present law is to protect waters against all harmful effects. In particular it aims: a. to maintain the health of persons, animals and plants; b. to guarantee the supply and economic use of drinking water and water required for other purposes; c. to maintain the natural biotopes of indigenous fauna and flora; d. to maintain waters suitable to sustain natural fish populations, etc. ” Article 29 -36 of GSchG demonstrated permits, conditions for the permit and calculating methods for maintaining appropriate residual rates of flow. Legislation and Regulations of Environmental Flows in the United States Environmental flows are gaining broad recognition across the United States, and the underlying science is sufficiently developed to support regional planning and policy applications [11]. Environmental flows were also named in-stream flows in the US. The jurisdiction of the water resources in the United States, owned by the states, each state make their law about in-stream flow in accordance with their traditions and characteristics. Colorado is a leader in in-stream flow protection. In 1973, the Colorado legislature recognized the need to “correlate the activities of mankind with some reasonable preservation of the natural environment” and passed senate bill 97 creating the State’s In-stream Flow Program. Colorado’s

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In-stream Flow Program is comprised of three key program areas: new appropriations, water acquisitions and water rights protection [12]. Florida Law (Chapter 373.042, Florida statutes) requires the state water management districts or the department of environmental protection to establish Minimum flows and levels for aquifers and surface water bodies to identify the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area [13]. The Connecticut legislature passed a law requiring the protection of environmental flows for the “stocked streams” of Connecticut-that is, those rivers and streams stocked with fish by the division of wildlife in 1971. In 2005, the legislature updated this statute to require the Department of Environmental Protection (DEP) to develop environmental flow regulations for all rivers and streams in the state while also providing for the other uses of water [14]. Legislation and Regulations of Environmental Flows in Australia In 1994, the Coalition of Australian Governments (COAG) signed the Water Reform Agreement and identified the environment as a legitimate water user. The Agreement restricts trading rights associated with water allocations unless water has also been allocated to the environment. These allocations, referred to as ‘environmental flows’, are aimed at protecting the health of natural ecosystems, while providing security of supply to water users [15]. The Australian Water Act 2007 does not give an explicit priority to environmental water provisions, but it does require that environmental water be given the same statutory recognition as consumptive water entitlements. This not only places environmental water allocations on the same footing as other water uses, but also opens the door for trading in environmental water entitlements and allocations. Australian Capital Territory government have taken the lead to establish Environmental Flow Guidelines(2006) in Australia, particularly stipulated special purpose flows which are flows designed for a particular ecological need, for example the flow needed to encourage breeding of a species of fish, or to protect habitat of a frog species. Legislation and Regulations of Environmental Flows in South Africa In South Africa, Environmental Flows (called “ ecological reserve”) have the priority over other water users. The South African National Water Act (NWA) gives an example of good legislation about consideration of environmental flows water. 1998, South African promulgated NWA, the act calls for the creation of two reserves of water: one for human needs and the other as an ecological reserve. The ecological reserve focuses on the water needed to maintain ecosystem health, including aquatic species. The ecological reserve, along with the basic human needs reserve, has been placed top location of multipurpose for Use of Water. NWA declared that the ecological reserve relates to the water required to protect the aquatic ecosystems of the water resource, the reserve refers to both the quantity and quality of the water in the resource, and will vary depending on the class of the resource. According to (1)(a) of article 6 of NWA:(1) The national water resource strategy must, (a) set out the strategies, objectives, plans, guidelines and procedures of the Minister and institutional arrangements relating to the protection, use, development, conservation, management and control of water resources within the framework of existing relevant government policy in order to achieve (i) The purpose of this Act; (ii) Any compulsory national standards prescribed under section 9(1) of the Water Services Act, 1997 (Act No. 108 of 1997); (iii) The requirements of the Reserve and identify, where appropriate, water resources from which particular requirements must be met, etc. However, groundwater is not explicitly included in the South African definition of the ecological reserve [16].

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Legislative proposal on Environmental Flows Legislation and Regulations for China Creating National Water Resource Protection Law. The Water Law of People’s Republic of China (WLPRC) is the basic law on water affairs, which is a principled one, extensive in content and concise to point. In addition to the WLPRC, specific laws and administrative rules and regulations are to be formulated according to different needs and situations, local rules and regulations. Nevertheless, there is comprehensive and exclusive legislation for protection of water resource in China [17]. Future Water Resource Protection Law should include exploitation and utilization and protection of water, especially protection of aquatic ecosystems. The State shall protect eco-environmental water supply by means of legislation, strategy adopting and policymaking, as well as undertaking measures for stipulating indicators and benchmarks, etc [18]. Basin-level water allocation plans, like the Yellow River, Yangtze River, and other regional water allocation plan, drawn up under water resources legislation, can identify the rights of different groups to use water resources and so should include environmental flow requirements. This means that water will be provided to maintain important ecosystem assets and functions during subsequent water management operations. Setting Environmental Flows Regulations. Except legislation of Water Resource Protection, concrete Environmental Flows Guide must be formulated. Only by Specific Provisions, aquatic ecosystems can get sustainable safeguard. The importance of Environmental flows has been recognized increasingly in China. Two books were published recently: Environmental Flow of the Yellow River [19] and Environmental Flows Research and Practice in China [20], have explored administration and methods of main rivers in China. China's complex and varied climate results in a great variety of temperature belts, and dry and moist zones, water resources remain unevenly distributed. Establishing specific minimum flow values for different average flow rates, different regions, depending on geographic and ecological factors is more suitable. Statutory regulations should stipulate that the development of management plans of basins and regions must set aside the minimum amount of water required to maintain the health of the river, with allocations for consumptive use being restricted to the amount of water exceeding this requirement. In addition, for some wild and scenic rivers, which involve the preservation of unique ecological value, the legislation and regulations should set special target to their protection. Acknowledgements This research is supported by special funds for public research of Ministry of Environmental Protection of P.R.C.(200909057) and funded by the priority academic program development of Jiangsu higher education institutions (PARD). References [1] M. Dyson, G.Bergkamp, and J. Scanlon: Flow–The Essentials of Environmental Flows, IUCN, Gland, Switzerland(2008) [2] R. Tharme: A Global Perspective on Environmental Flow Assessment: Emerging Trends in the Development and Application of Environmental Flow Methodologies for Rivers. River Research and Applications (2003) , 19(5-6) [3] A. Ruef, C. Bratrich: Integration of the EU’s Water Framework Directive and the Greenhydro Standard. Improving the Aquatic Environment in River Systems Affected by Hydropower Generation(2007). Eawag, Switzerland [4] EU: DIRECTIVE 2000/60/EC, Official Journal of the European Communities(2000), 22.12.2000

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[5] M.C. Acreman, A.J.D. Ferguson: Environmental Flows and European Water Framework Directive. Freshwater Biology(2010), 55 (1) [6] Y. Souchon, P. Keith: Freshwater Fish Habitat: Science, Management and Conservation in France in Aquatic Ecosystem Health and Management, Aquatic Ecosystem Health and Management(2001) ,Vol. 4 [7] Information on http://wipo.int/portal/index.html.en [8] Information on http://www.legifrance.gouv.fr [9] Information on http://www.legislation.gov.uk/ukpga/1963/38/contents [10] Information on http://www.bafu.admin.ch [11] Information on http://sifn.bse.vt.edu [12] Information on http://cwcb.state.co.us [13] Information on http://www.swfwmd.state.fl.us [14] E. Kendy, C. Apse and K. Blann: A Practical Guide To Environmental Flows for Policy and Planning(2012) [15] I. Halliday and J. Robins: Environmental Flows for Sub-tropical Estuaries, Final Report FRDC Project No. 2001/022 [16] E van Wyk, CM Breen et al.:The Ecological Reserve: Towards a Common Understanding for River Management in South Africa, Water South Africa(2006), 32 (3) [17] Information on http://news.sina.com.cn/o/2011-03-04/060022049983.shtml [18] Desheng Hu: Water for the Eco-environment-A Perspective from International Law, Journal of Xi’an Jiaotong University(Social Sciences) (2000), 30(2) .(In Chinese) [19] Xiaoyan Liu, et al.: Environmental Flow of the Yellow River, Huanghe Hydraulic Publishing House(2009). (In Chinese) [20] Jin Chen, et al.: Environmental Flows Research and Practice in China, China Water Conservancy and Hydropower Publishing House (2011). (In Chinese)

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Environmental Flows Legislation and Regulations in Foreign Countries and the Enlightenment to China 10.4028/www.scientific.net/AMM.295-298.2181