Addressing Adaptive Law in the Context of Irrigation Regulation in Kazakhstan

University of Eastern Finland Law School

MDP in Environmental Policy and Law

31 October 2017

Writer: Aziya Taalaibekkyzy 277196

Supervisor: Niko Soininen

II

Abstract

UNIVERSITY OF EASTERN FINLAND

Faculty

Social Sciences and Business Studies

Unit

Law School

Author

Aziya Taalaibekkyzy

Name of the Thesis

Addressing Adaptive Law in the Context of Irrigation Regulation in Kazakhstan

Major

Environmental and Climate

Change Law

Description

Master’s thesis

Date

31

October

2017

Pages

62

Abstract

This thesis focuses on Kazakhstan’s irrigation law, which is facing challenges in adapting to climate

change impacts. Adaptive law is brought forward as a theoretical framework to assess the adaptive

capacity and potential for further improvement in the face of climate change induced changes in

available water quantity used for irrigation practices. This is an important issue in Kazakhstan, as

agriculture is becoming an economic priority for the country for its development. Adaptive law

criteria is developed to address how adaptive is irrigation law in Kazakhstan, and whether it is

possible for it to be effective in an established legal system. My analysis finds Kazakhstan’s

irrigation law to be maladaptive overall, but containing some elements of adaptive capacity that can

be developed. Primary barriers for adaptivity include the centralized nature of governance, which

does not enable multi-stakeholder decision-making and an iterative process to inform decision-

makers. Moreover, the lack of enforcement and relevant safeguard standards in the law poses as a

fundamental challenge for it even at this time, as enforcement is one of the most important features

for adaptivity in regulation to work. Importantly, the lack of transparency and information available

in managing of water resources undermines the use of adaptive law, as it would only worsen current

conditions as a result of enabled opportunity for corruption. Nevertheless, there are elements of

adaptive capacity already in place, which offer an opportunity in the future for it possible become

more adaptive. These are overall substantive goals that focus on water basin approach, and

procedural features, such as access to justice, permit systems and other elements. Brief

recommendations focus on improving these elements and paving way for more dramatic changes in

the governance and regulation of water resources in agricultural practices. Nevertheless, without the

state’s willingness and capacity to achieve this, it is unlikely that adaptive law can be fully

implemented.

Key words

Water law, irrigation, adaptive law, climate change, Kazakhstan

III

TABLE OF CONTENTS

ABSTRACT ............................................................................................... II

LIST OF ABBREVIATIONS .................................................................. IV

REFERENCES .......................................................................................... V

1 INTRODUCTION .................................................................................. 1

1.1 Background and Rationale ........................................................................... 1 1.2 Theoretical Framework ................................................................................ 2 1.3 Methods........................................................................................................ 5

2 ADAPTIVE LAW AS A WAY FORWARD ......................................... 7

2.1 Definition and need for adaptive law ........................................................... 7 2.2 Critique of adaptive law ............................................................................. 12 2.3 Developing criteria for measuring adaptive law ........................................ 15 2.4 Criteria of assessment ................................................................................ 23

3 REGULATION OF IRRIGATION IN KAZAKHSTAN .................... 25

3.1 Contextualization of irrigation issues in Kazakhstan ................................. 25 3.2 Legislation on irrigation ............................................................................. 30

3.2.1 Legal set up ................................................................................. 30

3.2.2 Institutional set up ....................................................................... 31

3.2.3 Water Code ................................................................................. 33 3.2.4 Land Code ................................................................................... 36

3.3 Discussion .................................................................................................. 38

4 ANALYSIS OF LEGAL ADAPTIVITY ............................................. 42

4.1 Assessment against established adaptivity criteria .................................... 42

4.1.1 Goals ........................................................................................... 42 4.1.2 Structure ...................................................................................... 44 4.1.3 Methods....................................................................................... 47

4.1.4. Processes .................................................................................... 49 4.2 Strengths and gaps ..................................................................................... 52

4.2.1 Identified strengths...................................................................... 52 4.2.2 Capacity and limitations ............................................................. 54

5 CONCLUSIONS AND RECOMMENDATIONS ............................... 58

IV

LIST OF ABBREVIATIONS

CWR Committee for Water Resources

EU European Union

GEF Global Environmental Facility

IWRM Integrated water resource management

MOA Ministry of Agriculture

NGO Non-governmental organization

SDGs Sustainable Development Goals

UN United Nations

UNDP United Nations Development Programme

UNECE United Nations Economic Commission for Europe

UNFCCC United Nations Framework Convention on Climate Change

USD United States Dollar

V

REFERENCES

LITERATURE

Adaptive law literature

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implementation of adaptive management. 92 Journal of Environmental

Management 2011, p.1379-1384.

Arnold, Craig Anthony – Gunderson, Lance: Adaptive Law. In Allen, Craig R. and

Garmestani, Ahjond S. Social-Ecological Resilience and Law. Colombia

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Environmental Law Reporter News and Analysis 2013.

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Law Review 2013, p. 933-962.

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law: From general concepts and governance design principles to actionable

mechanisms. 43 Environmental Policy and Law 2014, p. 98-110.

Committee on Endangered and Threatened Fishes in the Klamath River Basin,

National Research Council: Endangered and Threatened Fishes in the

Klamath River Basin: Causes of Decline and Strategies for Recovery. The

National Academies Press 2004.

Craig, Robin Kundis: “Stationarity is Dead” - Long Live Transformation: Five

Principles of Climate Change Adaptation Law. 34(1) Harvard Environmental

Law Review 2010, p. 9-75.

Craig, Robin Kundis – Ruhl, J.B.: Designing Administrative Law for Adaptive

Management. 67(1) Venderbilt Law Review 2014, p. 1-87.

Djalante, Riyanti – Holley, Cameron – Thomalla, Frank: Adaptive Governance and

Managing Resilience to Natural Hazards. 2(4) Int. J. Disaster Risk Sci. 2011,

p. 1-14.

Eckstein, Gabriel: Water Scarcity, Conflict, and Security in a Climate Change World:

Challenges and Opportunities for International Law and Policy. 27 (3)

Wisconsin International Law Journal 2009, p. 409-461.

VI

Folke, C. - Hahn, T. - Olsson, P. – Norberg. J.: Adaptive governance of social-

ecological systems. 30 Annual Review of Environmental Resources 2005, p.

441–473.

Green, O.O. – Garmestani, A. S. – van Rijswick, H. F. M. W. – Keessen, A. M.: EU

Water governance: Striking the Right Balance between Regulatory Flexibility

and Enforcement. 18 (2) Ecology and Society 2013.

Gunningham, Neil – Holley, Cameron: Next-Generation Environmental Regulation:

Law, Regulation, and Governance. 12 Annual Review of Law and Social

Science 2016, p. 273-293.

Holley, Cameron – Gunnigham, Neil – Shearing, C.: The New Environmental

Governance. Abingdon UK: Earthsean 2012.

Keessen, A. M. and van Rijswick, H. F. M. W.: Adaptation to Climate Change in

European Water Law and Policy. 8 (3) Utrecht Law Review 2012, p. 38-50.

Keessen, A. M. – Hamer, J. M. – van Rijswick, H. F. M. W. – Wiering, M.: The

concept of resilience from a normative perspective: Examples from Dutch

adaptation strategies. 18(2) Ecology and Society, 2013.

Lockwood, M. et al: Governance Principles for Natural Resource Management. 23

Society & Natural Resources 2010, 986-1001.

Pahl-Wostl, Claudia: Transitions towards adaptive management of water facing and

global change. 21(1) Water Resources Management 2007, 49-62.

Ruhl, J.B.: Thinking of Environmental Law as a Complex Adaptive System: How to

Clean up the Environment by Making a Mess of Environment Law. 34(4)

Houston Law Review 1997, p. 933-1002.

Ruhl, J.B.: Climate Change Adaptation and the Structural Transformation of

Environmental Law. 40 Environmental Law 2010, 363-431.

Ruhl, J.B.: General Design Principles for Resilience and Adaptive Capacity in Legal

Systems: Application to Climate Change Adaptation Law. 89 North Carolina

Law Review 2011, p. 1373-1401.

Ruhl, J. B.: Designing Administrative Law for Adaptive Management. 67 Vanderbilt

Law Review 2014, p. 1-87.

Soininen – Platjouw: Resilience of Aquatic Environmental Law in the EU – An

evaluation and comparison of the WFD, MSFD, and MSPD. In D. Langlet and

R. Rayfuse Ecosystem Approach in Ocean Governance and Planning. Brill

(forthcoming) 2018.

VII

Termeer, Catrien – et al: The regional governance of climate adaptation: A

framework for developing legitimate, effective, and resilience governance

arrangements. 2 Climate Law 2011, p. 159-179.

Walters, C. T. – Holling, C. S.: Large-Scale Management Experiments and Learning

by Doing. 71 (6) Ecology 1990, p. 2060-2068.

Willams, B. K. – Brown, E. D.: Technical challenges in the application of adaptive

management. 195 Biological Conservation 2016, p. 255-263.

Williams, B. K.: Adaptive management of natural resources – framework and issues.

92 Journal of Environmental Management 2011, p. 1346-1353.

Literature on Kazakhstan

Al-Fati, I.: Policy Planning and Implementation. 12 (1, 2) Eastern and Central

European Journal on Environmental Law 2008.

Beisembin K. R.: Rational use of water resources in Kazakhstan. 11 (31) Scientific

Research Publications 2015.

Global Water Partnership: Central Asia and Caucasus. Regional Review. Water

Supply and Sanitation in the Countries of Central Asia and Southern Caucasus

2009.

Fay, M. - et al: Adapting to Climate Change in Europe and Central Asia. World Bank

Washington DC 2009.

Libert, Bo: Water management in Central Asia and the activities of UNECE. In

Rahaman, M. M. and Varis, O. Central Asian Waters. TKK and Libert 2008.

McKinney, D. C.: Chapter 9 Cooperative Management of Transboundary Water

Resources in Central Asia. In Burghart, D. and Sabonis-Helf, T. Water

Security in Central Asia: Solving a Rubic’s Cube. Washington DC National

Defence University 2003, p. 187-220.

Petrakov – Kenshimov: Parts 1 and 2 Practical guide on implementation of provisions

from the Water Code 2012.

Riccardo, P. – Baris, O. – Janenova, S.: Objective or Perception-based? A debate on

the ideal measure of corruption. 50(77) Cornell International Law Journal

2017, p. 77-106.

VIII

Stucki, V. - Sojamo, V.: Nouns and numbers of the water-energy-security nexus in

Central Asia. 28(3) International Journal of Water Resources Development

2012, p. 399–418.

Wegerich, Kai et al: Water Security in Syr Darya Basin. 7(9) Water 2015, p. 4647-

4684.

Ziganshina, Dinara: International Water Law in Central Asia: Commitments,

Compliance and Beyond. 20 Water Law 2009, p. 96-107.

OFFICIAL SOURCES

National documents

Ministry of Environment and water resources of the Republic of Kazakhstan - United

Nations Development Prgoramme (UNDP) in Kazakhstan - Global

Environmental Facility (GEF): III-VI National Communication to UN

Framework Convention on Climate Change (UNFCCC). Astana 2013.

Blinov, Y.V.: Technial Report. Assessment of the impact of climate change on water

resources of Kazakhstan. Ministry of Environment and water resources of the

Republic of Kazakhstan, United Nations Development Prgoramme (UNDP) in

Kazakhstan and Global Environmental Facility (GEF) 2012.

Ministry of Agriculture of the Republic of Kazakhstan: Governmental Program for

Agro-Industrial Complex Development for 2017-2021 2017, under

Presidential Decree of the Republic of Kazakhstan from 14th February 2017

No. 420.

Ministry of Environment and Water Resources of the Republic of Kazakhstan:

Governmental Program for water resources governance of the Republic of

Kazakhstan for 2014-2040 2014, under Presidential Decree of the Republic of

Kazakhstan from 19th March 2010 No. 957.

United Nations documents

FAO: Irrigation in Central Asia in Figures. AQUASTAT Survey. Frenken, Karen,

Food and Agriculture Organization of the United Nations 2012.

UNECE 2011, ECE/MP.WAT/35. Strengthening Water Management and

Transboundary Water Cooperation in Central Asia: the Role of UNECE

IX

Environmental Conventions.

UNDP 2010, Regional Project Document. Central Asian Multi-Country Programme

on Climate Risk Management (CA-CRM).

INTERNET SOURCES

CA-Water Info: Database. Ziganshina, D. Comparative analysis of national water

regulation of Central Asian countries in light of IWRM implementation.

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The Official Internet Resource of the Ministry of Agriculture of the Republic of

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October 17, 2017). a

The Official Internet Resource of the Ministry of Agriculture of the Republic of

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[http://mgov.kz/ru/podderzhka-i-uslugi/mery-gosudarstvennoj-podderzhki/]

(accessed October 17, 2017). b

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[http://mgov.kz/ru/proverka-sub-ektov-chastnogo-predpri/] (accessed October

17, 2017). c

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Leader of the Nation, N. A. Nazarbaev. Published in 2012.

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[https://www.transparency.org/country/KAZ] (accessed October 28, 2017).

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2017).

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X

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1

1 INTRODUCTION

1.1 Background and Rationale

Agriculture remains Kazakhstan’s important economic sectors, as the government

sees a lot of potential for economic growth and overall development in this area.1

Consequently, the government has been steadily investing in agricultural industry, and

has introduced a newly updated Program for Agro-Industrial Development for 2017-

2021. Grain is its primary production focus, whereas, cotton and rice production

grown in the south are the most water usage intensive.2

However, current irrigation practices have heavily impacted land quality, reducing

usable land for irrigation by almost 8% between 2011 and 2015.3 In 2015, 68% of

available water has been directed towards agricultural use, and almost 79% of that

water was used in irrigation of crops.4 With increasing impacts of climate change,

there will be less water available for the agriculture and water users in Kazakhstan.5

Present practice of irrigation is considered extremely wasteful as a result of lack of

systematization of institutional governance, problematic enforcement of the law,

inefficient monitoring and transparency, limited finances; lack of incentives to use

water resources efficiently; and lack of technical support towards degrading water

facilities and efficient new irrigation technologies.6 Improved water management in

agricultural sector has been identified as a vulnerability and in need for adaptation

measures, particularly, not only with crop diversification and using drought resilient

cultivars, but also with improvements in irrigation methods, such as the installment of

drip irrigation systems. 7 Kazakhstan’s National Communication III-VI to United

Nations Framework Convention on Climate Change (UNFCCC) highlights heavy

1 Ministry of Agriculture of the Republic of Kazakhstan 2017, Section 2, p. 3-4. 2 Blinov, Y.V. 2012, p. 27. 3 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.2, p. 9-10. 4 Ibid. section 3.7, p. 22-28. 5 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan –

GEF 2013, p. 12 6 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7, p. 22-28; Ministry of

Environment and Water Resources of the Republic of Kazakhstan 2014, p.13-15, p. 26-31. 7 UNDP 2010, p. 10.

2

impact of climate change on the economy, particularly the agricultural sector, where

irrigation practices and drinking water supply remain most vulnerable.8

All of these solutions must be reinforced by clear institutional arrangements supported

by the robust legal frameworks. However, existing water law related to irrigation is

rigid in terms of coordination issues and lack of transparency, especially considering

public participation and access to basic information regarding compliance and

monitoring reports. Moreover, the law does not establish clear responsibilities for

implementing agencies, and the result is lack of coherency in management. This thesis

assesses the adaptivity of Kazakhstan’s water regulation in the agricultural sector in

general, and the regulation of irrigation management in specific. Water management

and regulation in the agricultural sector is an important area of climate adaptation for

Kazakhstan, as the country is extremely vulnerable to desertification and drought.9

Law needs to support climate adaptation in agriculture through adaptation to novel

management practices and environmental conditions.

Main questions:

• How adaptive is the water regulation managing irrigation in Kazakhstan to the

changing climate environment and climate change impacts?

• How the legislation should be improved to better address adaptation to climate

change and droughts in the agricultural sector?

1.2 Theoretical Framework

Climate change brings about uncertainty in dealing with the regulation of agricultural

irrigation, and there is a need for the legal framework to facilitate learning in order to

adapt to the new conditions. This learning should be based on scientific evidence that

informs the regulation, for instance predicting decrease in water flow or rainfalls and

putting forward laws and standards that address sustainable and less wasteful use of

water resources. Environmental law needs to improve its management capacity over

its subject matter through learning in order to be adaptive.10

8 Ministry of Environment and water resources of the Republic of Kazakhstan – UNDP Kazakhstan –

GEF 2013, p. 12. 9 Ibid. p. 12 and p. 191. 10 Ruhl 1997, p. 989.

3

Adaptive law is an example of new environmental governance, which is defined as a

collaboration of agencies and organizations involved in common decision-making of

an environmental matter for a common goal (such as private, public,

nongovernmental, and other stakeholders). 11 Sustainable uses and overall

management of natural resources, in this case water use in agriculture, have been

encouraging changes in governance and its design for the economical, environmental

and social benefits. Such collaborative governance encourages interdependency and

greater interaction among a wide range of actors. In turn this offers a greater variety

of knowledge.12 As a result, collaborative governance, particularly in the form of

adaptive management in legal context, offers opportunities to address uncertainty,

complexity and interdependency that stem from governance of natural resources in

the face of climate variations. This leads to the need for decentralized governance to

withstand such changes. In practice, normative guidance is much needed for the

design of such systems.

Adaptive law theory offers an innovative solution to transform a rigid centralized

legal system into a resilient and adaptive decentralized system of laws that allows an

iterative process and a feedback system to improve impact and effectiveness of the

laws by paying higher attention to and incorporating learning. When referring to

adaptivity of the law I draw from adaptive management and resilience theories.

Adaptive management in a legal context is a “structured decisionmaking method, the

core of which is a multistep, iterative process for adjusting management measures to

changing circumstances or new information about the effectiveness of prior measures

or the system being managed”.13 In turn, legal system that is resilient is consistent “in

overall behavioral structure notwithstanding continuous change of external and

internal conditions”. 14 Therefore, I am interested in a process and design

configuration of a legal system responding to climate change impacts, such as

droughts, that allows an extent of administrative and managerial flexibility. This

would be based on continuous learning process encouraged by assessments and

evaluations of subject matter to inform decision-making process. Examples of such

11 Holley et al. 2012, p. 4. 12 Lockwood et al 2010, p. 986-990. 13 Ruhl 2014, p. 1 14 Ruhl 2011, p. 1379.

4

processes are reviews addressing potential for environmental and legislative

effectiveness, for changes in substance of the law (ex. in land use plans), monitoring,

capacity building, consistent sectoral meetings and other mechanisms. Certain

features could inform the law better, such as availability of data and information, and

long-term planning instruments among others. This will be further elaborated in

Chapter 2.

It’s important to consider the relevance of adaptive law to water management in

agricultural sector in Kazakhstan. Apart from providing a quick legal response to the

quickly changing environmental conditions in the irrigation system, in this case

resource availability and quality, it’s important to consider whether adaptive law is

actually necessary and useful. Craig and Ruhl have identified where adaptive law is

not needed: where long-term stability in decisions is paramount, where implemented

decisions cannot be easily changed, and where the agency’s final authority towards a

decision is essential.15

As has been highlighted so far, the scope of this study is the analysis of Kazakhstan’s

national water laws in the agricultural sector. I’m interested in how the law can be

adaptive to increase adaptation capacity to climate change impacts, specifically

looking at Kazakhstan’s water regulation and management in agricultural sector in

relation to irrigation. The research objective is to assess whether the law is adaptive or

not with specific set of adaptivity criteria. There are limitations to be considered when

engaging with this study. First, whether irrigation law needs to be adaptive at all, and

this will be more closely discussed later. Second, whether the need for transparency in

adaptive law can be weakness for its applicability in this study. Risk for corruption is

a very real problem in Kazakhstan and remains an important challenge.16 Such risk

poses a question of necessity of adaptive law in Kazakhstan, as it requires a

functioning and a transparent legal system to have an effect. Moreover, adaptive law

has drawn criticism towards its practicability and efficiency, predominantly its limits

to reduce uncertainty, its cost, and its ability to improve natural resource

management.17 These arguments will be further addressed in Chapters 2 and 3. I am

15 Craig – Ruhl 2014, p. 13. 16 Transparency International 2015. 17 Biber 2013, p. 939-956.

5

interested in applying the methodology of adaptive law that was briefly outlined

above and further explored in my research below, and general law design principles

that deal with resilience, in order to emphasize the work done at national level to

adapt to climate change.

1.3 Methods

The scope of this research is analysis of regulation relevant to irrigation practices,

specifically addressing water uses derived from surface water. I am only addressing

water quantity issues, relating to distribution, access and ongoing challenges with

water related extreme events. Importantly, I am excluding analysis of international

obligations and transboundary agreements on water management in Kazakhstan,

despite significant impact on water management and irrigation practices. This is

because they portray different challenges to climate change adaptation than national

water laws. Primary law relevant to this assessment is Kazakhstan’s legislation on

water is outlined in the Water Code No. 481-II from 1993, and the Land Code No.

442 from 2003. I will also look at relating legislation, such as the Presidential Decree

on “Approval of governmental program on development of agro-industrial complex of

the Republic of Kazakhstan for 2017-2021” 2017 No. 420. Particular attention is also

given to Normative decrees of the Committee for Water Resources (CWR) under the

Ministry of Agriculture (MOA). Ministry of Environment and Water Resources has

been dismantled in 2013, and environmental issues have been distributed between

different ministries. For our context, water management has been particularly taken

over by MOA, which has formed a CWR, which is responsible for management of

water in agricultural sector in Kazakhstan.

Among identified problems that feed into the maladaptive state of the regulation,

corruption may present itself as one of the biggest barriers to successful adaptivity

processes. Another potential issue is that the current legislation may not take into

account long term, mid-term and short-term changes to the environment as a result of

climate change, which significantly affects local areas. I intend to highlight the need

to implement and incorporate resilience and adaptive elements in the criteria

explained above into legislation. This is central because it emphasizes the importance

of legislative quality, and in particular, the benefits of adaptive and resilient

6

legislation facing fast-paced climate change impacts. General recommendations from

this analysis may provide insight for future developments.

Overall, this is an analysis of the potential effectiveness of the legal system to respond

to water security risks evoked by climate change. I aim to use integrated criteria

drawn from relevant research and literature on adaptive management and principles of

resilience (some of which have been stated earlier) to assess irrigation laws in

Kazakhstan. The overall focus is on the adaptive capacity of laws on water

management and use in relation to the impacts of climate change.

My research starts with addressing literature on adaptive law and management, and

principles of resilience. This is to primarily narrow down and determine criteria that

would assess how adaptive and resilient water and environment regulation is to

climate change impacts. Once the criteria or methodology of assessment is established

(see Chapter 2), I will continue with interpret relevant national laws (see Chapter 3),

and apply criteria to measure against the level of adaptivity of the law to climate

change impacts in Chapter 4.

With the ongoing legal development in environmental sphere, my objective is to

assess how adaptive and how resilient water law is in the agricultural sector to the

effects of climate change. I wish to offer an insight into the level of legal resilience

over environmental changes, highlight strength and/or weaknesses found in the

current legislation, and offer recommendations.

In the following sections I will firstly address adaptive law, its advantages and

limitations and potential practical applications and examples, from which I will

present a criteria of assessment for our analysis. Secondly, I will identify and interpret

primary laws and policy processes that oversee management and usage of water in

agricultural sector in irrigation, and outline strengths, gaps and barriers of its design

and effective management. Thirdly, I will use criteria of assessment to analyze

whether the laws in place are adaptive, and whether adaptive law theory is applicable

to water management in agriculture in Kazakhstan. Finally, my concluding thoughts

will also provide general recommendations based on my evaluation.

7

2 ADAPTIVE LAW AS A WAY FORWARD

2.1 Definition and need for adaptive law

The aim of this chapter is to elaborate on adaptive law and establish a methodology

for my analysis based on adaptive law theory. The output of this chapter is the

proposed criteria of assessment for legislation related to water management in the

agricultural sector in Kazakhstan.

With the rapid climate change related risk that has been most devastating in the past

few years, legislation needs to keep up with continuing impacts. Legislative stationary

and reliable attributes in managing the environment have been derived from “a

decision-making process that depends heavily on a culture of comprehensive rational

planning and prescriptive evaluations”.18 This approach to environmental law relies

on fixed and comprehensive analytical tools prior to a legal decision, and on the

assumption to comprehensively predict and assess impacts of this decision. 19

However, this approach constraints legislative flexibility due to its strict pre-

determined system of actions that does not take into account continuous large-scale

changes in the environment, and limit administrative capacity to adjust their

processes. As a result, this rigid nature could be less suited to manage fluctuations in

environment, especially in the context of climate change. It presumes static and

particular conditions in the environment, whereas in reality fluctuations in

ecosystems, management of natural resources and the impacts of climate change are

not easily managed by inflexible structures of law.20

Adaptive law reflects the ability of regulation to maintain resilience by its ability and

capacity to respond to changing environments while maintaining intended aims and

functions, and continuously reflecting available scientific knowledge to inform the

function of the management system.21 This form of adaptive management in natural

resources use has been referred to as a pursuit of management and learning, where

learning by doing and adjusting management to reflect the learning and new facts are

18 Craig – Ruhl 2014, p. 4. 19 Ibid. 20 Arnold – Gunderson 2013, p. 2-5. 21 Soininen – Platjouw 2018 (Brill, forthcoming), p. 3.

8

key ideas.22 The core idea of this decision-making processes is through structured

“multistep, iterative process for adjusting management measures to changing

circumstances or new information about the effectiveness of prior measures or the

system being managed”.23 Adaptive law does not necessarily take away from the

front-end regulation, but it aims to add to it by allowing iterative decision-making

processes 24 , which enhance management adjustments. Importantly, an adaptive

system in a regulation can also include elements from direct regulation, economic and

voluntary instruments, striking the balance between the rule of law and policy

instruments. These can include economic and voluntary tools, which can encourage

and enable innovation from versatile and polycentric system of management, and the

trick here is to maintain coherence among these different aspects, tools and regulatory

instruments.25 Adaptive law requires information in order to function, as it is relying

on different sources regarding environmental, economic and social feeds. It

encourages involved agencies to make decisions freely and more frequently,

following a structured protocol comprised of multiple steps.

Principles and primary traits for adaptive management have been identified as:

flexibility to deal with change; subsidiarity and connectivity in the form of openness

to enable participation and multi-level governance and management; and iterativity

where structures promote learning and adaptivity.26 Specifically, principled flexibility

can be described as flexibility that recognizes the distinction between uncontrollable

climate change and anthropogenic climate change, and implements consistent

principles for adaptation strategy. In other words it deals with uncontrollable climate

change impacts to achieve general adaptation goals addressing principles first 27 .

Therefore, adaptivity would require substantive flexibility of the law for the managers

to adjust their decisions, as well as procedural iteration and enabled learning for

planning and management. Hence, both substantive and procedural elements are

needed for adaptive law to function effectively.28 Substantive mechanisms refer to

22 Walters – Holling 1990, p. 2060-2062; Williams – Brown 2016, p. 255; Williams 2011, p. 1346,

Termeer el al 2011. 23 Craig – Ruhl 2014, p. 1. 24 Ibid. p. 7. 25 Soininen – Platjouw 2018 (Brill, forthcoming), p. 8; Arnold – Gunderson 2013, p. 13-18. 26 Clarvis – Allan – Hannah 2014, p. 99. 27 Craig 2010, p. 17, 64. 28 Soininen – Platjouw 2018 (Brill, forthcoming), p. 4,10.

9

clear goals that reflect available scientific knowledge, such as established standards

for water use or guiding principles.29 These goals require diverse consideration for

environmental, social and economic features and aspects, and would either require

narrow scope with a set of adjustable exemptions or a broad scope with strong

environmental safeguard system in place.30 Substantive elements of the law can be

found in goals and aims of the legislation, which should also outline principles and

justified substantive standards.

Procedural mechanisms refer to specific tools through an iterative process involving

monitoring and feedback loop systems to enforce and implement these goals.31 These

would not only ensure rights for information access, for participation and access

justice, but also connectivity towards implementation of substantive goals through an

established long term planning process.32 This iterative multi-step process towards

adaptivity is outlined as: (1) definition of the problem, (2) determination of goals and

objectives for management, (3) determination of the baseline, (4) development of

conceptual models, (5) selection of future actions, (6) implementation and

management actions, (7) monitoring, and (8) evaluation. 33 Such steps begin a

continuous revision of the subject matter and systematically reducing uncertainty,

which is precisely what is needed in managing water resources in the context of

impacts resulting from climate change.

An iterative process could be a costly and time-consuming process, yet it offers a

solution from the start, which arguably may be less costly than managing impacts that

are much worse in the future. Adaptive management is increasingly emphasized to be

valuable in cases of uncertainty that poses risks for the subject matter of the

legislation. As a result, the triggered system of adaptive management will rely on an

iterative process to ease management of natural resources and environmental issues

by systematically reducing uncertainty aspects. This also enables information

production and management decisions made concurrently34, making it more feasible

29 Soininen – Platjouw 2018 (Brill, forthcoming), p. 4 30 Ibid. p. 7 31 Ibid. p. 4 32 Ibid. p. 7 33 Committee on Endangered and Threatened Fishes in the Klamath River Basin, National Research

Council 2004, p. 332-335; Craig – Ruhl 2014, p. 7. 34 Biber 2013, p. 942.

10

to enable flexibility. The processes can be passive and active, where active adaptive

management requires experimentation and duplications, while passive is reliant on

desk analysis. Active adaptive management encourages the use of diverse strategies of

management techniques.35 For this to be practical and effective, procedural safeguards

are needed in order to establish a loop system for easy decision-making and hold

relevant managers accountable. 36 Examples can include review processes and

standards. This can be done with high levels of monitoring of the environment in

order to collect data and analyze results.

Adaptive management in law results in a resilient legal system that is consistent “in

overall behavioral structure notwithstanding continuous change of external and

internal conditions”37, which can be interpreted both in the context of legal design,

addressing structure and processes, and the stability of overall substantial context. In

other words, a resilient system has the capacity to maintain to a certain extent the

same function and structure, while it is undergoing change caused by external

influences and disturbances. Applying resilience principles in the normative context

may be challenging, but it is crucial. Ruhl has made sense of resilience theory that is

first derived from natural and social sciences, and now interpreted in the context of a

legal design.38 A prominent feature of resilience highlighted by Ruhl is “the capacity

to maintain high level of consistency of behavioral structure in the face of a dynamic

environment of change”.39 Principles and primary traits for adaptive management

have been identified as: flexibility, subsidiarity, connectivity and iterativity,40 hence it

can concluded that adaptive management is expected to enhance resilience of a legal

system to disturbances on various scales.

Adaptive management is a very difficult and different system to the current front-end

type of legal management of issues. As a result, it is important to first address the

current system’s potential and risks, and assess whether the benefits of using adaptive

management in a certain legal context are bigger than costs. In order for adaptive

management to be successful and efficient, there needs to be certain features and

35 Biber 2013, p. 946. 36 Soininen – Platjouw 2018 (Brill, forthcoming), p. 6; Keessen – van Rijswick 2012, p. 40-41, 46. 37 Ruhl 2011, p. 1379. 38 Ibid. p. 1373. 39 Ibid p. 1375. 40 Clarvis – Allan – Hannah 2014, p. 99-100.

11

conditions to the system of management. First condition is the balance between high

uncertainty and controllability and the low risk of a management problem in a system.

Uncertainty refers to decision-maker’s level of knowledge, understanding of

information with regards to the context of regulation responding to environmental

changes. Controllability refers to the level of control the decision-makers has over

regulatory environment. Risk refers to the possibility of backfiring and adverse

consequences in intervention and experimentation of the problem in management.41

The aim is to reduce uncertainty using the iterative process mentioned above, and if

uncertainty is low, then investment of time and resources is not necessary. If

controllability is low, then the chances of management effectively affecting the

system in an intended manner are low. If the risk is high, then this could lead to

backfire of investment and resources.42 This is a very clear and simplified requirement

to consider before weighing the costs and benefits of adaptive management in law. I

will also assess these conditions in my case study.

Second condition is the decision-making environment. This refers to both practical

and political suitability. For practical application of adaptive management we need:

clear goals for design management, monitoring and evaluation of alternative

governance options; enabling environment for implementation of its core features,

such as monitoring methods; available set of management and governance

possibilities, which enable testing and comparison for better decision-making; and the

matching time for both policy timeframes and adaptive management

implementation.43 For political environment, the agency needs to have continuous

reliable resources for monitoring, experimentation and assessment of the environment

and decisions. This is demonstrated through continuous financial and political

support, as well as active stakeholder engagement.44 Craig and Ruhl also highlight

that adaptive management in law can also compliment front-end regulation in order to

facilitate overall priorities of the policy.45

41 Allen – Gunderson 2011, p. 1380-1383. 42 Craig - Ruhl 2014, p. 19-20. 43 Ibid. p. 23. 44 Ibid. p. 23. 45 Ibid. p. 25.

12

Adaptivity is a broad concept, and in order for me to successfully assess Kazakhstan’s

water legislation applicable to agricultural use, specific criteria of assessment is

needed based on the existing research. The following are some of the outlined criteria

of assessment I have identified: iterativity, flexibility, connectivity, subsidiarity as

primary principles for adaptive management 46 , and maladaptive vs. adaptive law

features comparative table47. I’m intending to combine these criteria in Chapter 2.3,

with the structured focus on Arnold and Gunderson’s table in order to determine a

precise set of analytical tools to measure adaptivity in water regulation.

2.2 Critique of adaptive law

Criticism towards adaptive law has focused on the following themes: its ability to

handle uncertainty, its cost to change management practices, and its ability to improve

resource management. Biber has highlighted these problems; in addressing issues

with uncertainty, Biber has identified limits of large-scale environmental concerns,

problematic necessity of longer time to manage and apply adaptive management,

limits towards necessary monitoring requirements, needed institutional continuity and

patience, and problems of learning if dynamics of an environmental resource is too

high and not useful. 48 All of these issues require full attention of responsible

authority, which is difficult to achieve in practice, yet it can be worth the time and

attention if deemed to benefit from adaptive management techniques. When referring

to costs, direct costs of adaptive management refer to needed resources (time, money,

attention and consideration of decision-makers) and lost opportunities of regular

management by changing to adaptive management system.49 But it’s important to

consider that the intention of adaptive management in law is that benefits of these

costs will outweigh the costs of not taking action. Costs to flexibility comprise of

uncertainty for investors and developers and particularly local communities, creating

social, economic and psychological costs. Moreover, the risk of abuse by authorities

is higher as a result of flexibility and discretion allowed by adaptive management.

This is also in combination of reduced procedural requirements for decisions to be

made, which can take away public participation and judicial review.50 All of these

46 Clarvis – Allan – Hannah 2014. 47 Arnold - Gunderson 2014. 48 Biber 2013, p. 940-945. 49 Ibid. p. 945-946. 50 Ibid. p. 948-949.

13

problems with flexibility are valid risks, and it is important to be very careful when

adjusting the management options towards adaptive management. Finally, Biber

brings up the limits to the ability of adaptive management to improve management in

face of environmental uncertainties at all. This is emphasized in his point that

adaptive management cannot solve disputes over an issue that stem from

disagreements in values or conflicts, and instead are suitable for issues where there is

an understanding of shared and common priorities and goals.51 This an interesting

insight in assessing the relevance of adaptive management in legal context as it

emphasizes the importance to assess whether adaptive law can be useful in addressing

a certain environmental concern. In response to these problems Biber has concluded

with solutions in a form of relevant criteria for adaptive management to work. In

order to not undermine its own objectives, processes and address an environmental

uncertainty, adaptive law needs:

(1) a scale of time and place that enables multiple management and regulatory

options and/or monitoring of these options

(2) sufficient time to provide information before making groundbreaking

decisions

(3) institutional and legal structures that ensure high monitoring quality and are

stable over a longer period of time

(4) evidence that ensures that benefits outweigh the cost of adaptive management

(5) flexibility, which does not offer unacceptable levels of uncertainty for society,

and does not undermine adaptive management because of political issues and

pressures

(6) sufficient agreement on management and regulatory goals

(7) dynamism and uncertainty that justify adaptive management need52

Moreover, it is important to consider how these identified conditions can improve the

level of adaptiveness if facing challenges. Lawmakers need to assess how these

conditions can improve adaptivity in law through a careful consideration to what is

missing in their current set up and how additional systemic and conditional features in

their legal processes can move away from current problems with rigidity. To answer

challenges of adaptive management and law, Craig and Ruhl have highlighted that

51 Biber 2013, p. 956. 52 Ibid. p. 957.

14

adaptive management is not suitable to replace all law and cannot be applied in all

contexts; specific circumstances where adaptive law is not applicable have been

identified as: where long-term stability in decisions is paramount, where implemented

decisions cannot be easily changed, and where the agency’s final authority towards a

decision is essential.53 Therefore, adaptive law should be implemented in instances

where it benefits the subject matter of the law and enhances managerial effectiveness

of the law. This is seemingly most matter-of-fact explanation, yet it is important to

emphasize that adaptive law is not applicable to everything.

As a result, it’s important to ask whether the law should be adaptive for a certain

circumstance. This is answered by assessing the way that the law operated over its

subject matter, and analyzing the subject matter itself in order to define the level of

uncertainty, the costs of installing adaptive management options, and whether this

would benefit the case at all. More importantly, as emphasized earlier, it is very

important to assess and confirm that adaptive management tools will benefit the

practice of the law over management of natural resources. This assessment of the

system itself and whether it can use adaptive management and the results are foreseen

to be reliable, then it is most advisable to apply adaptive law. In cases where this

assessment bears more costs than benefits, then it is concluded that adaptive law

would not be useful and would spur further issues. As a result, changing the

management of the system of laws is a groundbreaking and costly at first step, yet if it

can prove its potential, then the risk is worth taking.

More criticism has been coming from applying adaptive law in practice. There are not

many examples of adaptive law in practice, and based on available literature and

assessment, most have not showed effectively the benefits of adaptive law due to its

challenging nature. The complex institutional and value requirements for adaptive law

can hardly inspire success if they are not firmly in place. Moreover, the complex

nature of adaptive law and the challenge of taking into consideration multitude of

relevant actors among other complexities and multimodalities make it difficult to

implement adaptive law in practice on a large scale perfectly. For instance, in the

European Union (EU) the Water Framework Directive, the Floods Directive and the

53 Craig and Ruhl 2014, p. 13.

15

Water Scarcity and Drought Strategy are considered to be resilient and adaptive

towards the impacts of climate change.54 Although there are weaknesses highlighted

that emphasize the challenges of implementing adaptive law in practice: complexity

of harmonizing legislation in the context of “institutional and procedural autonomy of

the Member States”. Precisely this feature has led towards an insufficient regulation

on sustainable use of water resources, and on freshwater resources distribution, which

hinders the balance of water right and use between and within societal groups.55 The

resulting challenge identified in EU water law with regards to resilience and

adaptivity is in managing differing interest groups in a complex system of governance

of autonomic states. This suggests that even with a proper institutional set up,

balancing empowered interest groups in a complex environment does not ensure a

clear solution. Finding ways to enforce the law is as important as its design and

institutional functioning. Nevertheless, EU water law offers a mixture of authorities

and inclusive of administrative set up per river basin, as well as a strong disclosure

and public participation clauses, which set up adaptive and resilient institutional

settings of the water law. Not only these requirements enable monitoring, assessment

and public involvement, but they also enforce a 6-year long planning cycle that

enables a change in the law that meets environmental and societal needs.56 Primary

EU water law offers an example of a regulation that actively uses adaptive

management and resilience theories, and therefore is considered to be an example of a

functioning adaptive law system, with a few considerable challenges in its design and

implementation. The EU case demonstrates the value of strong foundation for

institutional organization, and it is important to consider whether adaptive law can

function in a country with risks of corruption and brittle institutional setting. In

Chapter 4 I will discuss how Kazakhstan would face these challenges and what could

be done to improve an enabling environment for adaptive law.

2.3 Developing criteria for measuring adaptive law

Therefore, adaptive law is defined by a process and design configuration of a legal

system responding to environmental changes that allow an extent of administrative

flexibility. In other words, in order for the law to be adaptive, we need to look at the

54 Keessen and van Rijswick 2012, p. 49. 55 Ibid. p. 41. 56 Ibid. p. 41.

16

structure and processes of the law, and entirely the substance. For example, on

managing water quantity in agricultural sector, factors such as the potential for

monitoring, availability of data and information, potential to change land-use plans,

long-term planning instruments, capacity building, consistent sectorial meetings and

others, could ease legal capacity to adapt to environmental changes. Moreover,

scholars have argued that the law has to be adaptive in order to be effective against

climate change impacts.57 But how do you measure the level of adaptivity, what does

the answer tell us about the legislation?

Importantly, adaptivity of law is very difficult to measure and apply to context and, as

a result, it is written in very broad definitions, which is one of its biggest flaws, as it

does not provide for legislative certainty, and also its biggest strength, as it allows that

flexibility aspect suitable in environmental governance. Ruhl has argued that in order

for environmental law to be adaptive it needs to embrace and take the most out of

structural aggregation of organizations, efficient and informative information flows,

capacity for flexibility and nonlinearity, diversity in encouraged learning of the

system, and self-criticism on its ability to adapt, and this would mean to rely less on

details and propose guiding principles, which would inform the law on how to act and

behave in response to a changing subject matter. 58 Ruhl argues for sustainable

development, adaptive management and maintaining of biological diversity as the

guiding principles for adaptive environmental law.59 In order to measure adaptive

management approach we need information.

In developing criteria of assessment of adaptivity for water regulation in agricultural

sector in Kazakhstan, I will draw on literature and leading scholars of adaptive law.

The criteria of assessment will be a combination of proposed features of effective

adaptive law models and propositions, which would be the first one applicable to a

developing country. I will take into account that Kazakhstan is an economy in

transition and may have other challenges than the experience of developed countries.

In choosing criteria my aim is to pick up on most valued and relevant features of

adaptive law that would benefit the adaptivity of water law in agricultural sector.

57 Ruhl 2013, Craig 2014, Djalante and Holley 2011, Eckstein 2009, Folke 2005, Green 2013, Pahl-

Wostl 2007. 58 Ruhl 1997, p. 991. 59 Ibid. p. 992-999.

17

Scholars have identified some of the guidelines for principles and features on how

adaptivity criteria should be designed, such as: iterativity, flexibility, connectivity,

subsidiarity60, resilience evaluation criteria61 and maladaptive vs. adaptive law table62,

which specifically assesses the law’s adaptivity based on four aspects of assessment in

the laws: goals, structure, methods and processes. I am also referring to Soininen and

Platjouw for additional guidance relating to overall formulation of the general

direction of adaptivity criteria. 63 Importantly, these criteria highlight not only

substantive and procedural elements of adaptive law, but also present implementation

and compliance tools that ensure enforcement. Iterativity, flexibility, connectivity,

subsidiarity criteria addresses both substantial and procedural requirements for

adaptive law, and is relevant to both direct regulation and other policy instruments.

Resilience evaluation criteria and maladaptive vs. adaptive law table both engage

direct regulation, and elaborates on both substantive and procedural features of the

law. I will elaborate more on each set of criteria below.

Principles of iterativity, flexibility, connectivity, and subsidiarity are as follows:

iterativity relates to the generation and application of information and knowledge.

Flexibility addresses the capacity to change and adjust to the overall changing

conditions as a result of climate change. Connectivity relates to networks between

sectors for mobilization and collaboration. Subsidiarity is about implementation of at

ground level.64 All four become primary aspects of adaptive governance are reiterated

in literature in some form or another. 65 Clarvis, Alan and Hannah have clearly

outlined primary features of processes and mechanisms of adaptive governance in

water resources management drawn from analysis of success stories and discussed

experiences drawn from experiences all over the world below.

60 Clarvis– Allan – Hannah 2014, p. 98-110. 61 Keesan – van Rijswick 2012, p. 40-41. 62 Arnold – Gunderson 2014, p. 317-364. 63 Soininen – Platjouw 2018 (Brill, forthcoming). 64 Clarvis– Allan – Hannah 2014, p. 102. 65 Lockwood et al. 2010, p. 991-997; Craig 2010, p. 40-70.

18

Table 1. Governance mechanisms identified for adaptive and flexible governance systems

This table highlights the four principles of adaptive governance that balance

flexibility of these approaches and provide actual mechanisms that demonstrate each

principle. These governance mechanisms have also been weighted against their

potential for dealing with uncertainty. Primary water governance mechanisms

identified for adaptive management from the table above are procedural tools for

adaptive law: water management review periods, varied rights to water use and

access, established water use permit system, use of entitlements as share of resource,

administrative requirements, water rights trading, coordination between sectoral

management authorities, and consultation processes.66 Substantive tools identified are

primarily standards: locally appropriated standards (secondary legislation),

qualitative, quantitative and monitoring standards.67 These offer concrete examples

that can be reflected into practice, and introduce a starting point to decision-makers to

incorporate relevant instruments to make the laws more adaptive. In order to measure

these criteria, I will assess assign each instrument against goals, structure, methods

and processes of the law from Arnold and Gunderson’s maladaptive vs. adaptive law

table.

66 Clarvis– Allan – Hannah 2014, p. 104, 106. 67 Ibid.

19

Moreover, as emphasized earlier, adaptivity of the law needs substantive flexibility

and adaptive procedural safeguards to be effective. Thus, I will also look for duty to

give reasons, access to justice, monitoring standards, continuous review periods,

availability of multi-sourced data. Importantly, coherence among available

instruments and tools is key to ensure intended functions of adaptive law.68 In the

context of water management in irrigation, not every proposed method is relevant, and

an equivalent of some of them might need to be developed when assessing the case

study in Kazakhstan. I will use these highlighted mechanisms that encompass primary

features of adaptive management in law and are drawn from practical examples as

some of the indicators of adaptivity in the assessment of water law in irrigation

practices in Kazakhstan.

Keessen and van Rijwick have developed a resilience evaluation criteria to assess how

resilient and adaptive is EU water law. The criteria establishes guiding elements and

features to consider when assessing the law based on its resilience, and it showcases a

simple logic in understanding how these are demonstrated in practice.

Figure 1: Resilience evaluation criteria69

The figure above is based on adaptivity and resilience research and reflects principles

outlined by Clarvis, Alan and Hannah on iterativity, flexibility, connectivity and

subsidiarity. This criteria also adds an additional layer of balancing flexibility and

legal certainty, which is can be demonstrated in goals, objectives and exemptions that

provide clear justifications, expert opinions where necessary, disclosure and flexible

standard setting in both substantive and procedural obligations.70 It highlights access

to justice and participation in decision-making processes by the public and relevant

68 Soininen – Platjouw 2018 (Brill, forthcoming), p. 9. 69 Keessan – van Rijswick 2012, p. 49. 70 Ibid. p. 44-46.

20

actors and stakeholders. 71 Importantly, resilience evaluation criteria focuses on

effectiveness of the legislation, where the legal framework enables achievements of is

goals by providing conditions necessary such as enforcement mechanisms and

implementation paths.72 All of these structural and purposeful features of an adaptive

and resilient law must be assessed in a structured way in order to establish clarity in

understanding how the legal framework can withstand climate change disturbances.

Arnold and Gunderson have developed maladaptive vs. adaptive features comparative

table (see Table 1), which lays out features of maladaptive and adaptive law based on

environmental change of conditions, and against goals, structure, methods and

processes of the law. This approach offers a complex yet systematic outline on how to

assess the system of law.

Table 2. Features of Maladaptive and Adaptive Law73

71 Keessan – van Rijswick 2012 p. 42-44. 72 Ibid. p. 47-49. 73 Arnold - Gunderson 2014, p. 6.

21

First feature focuses on aims and goals of the law that would need to build resilient

capacity for the environment and the society with equal regard. In other words,

Arnold and Gunderson have identified this feature as a poly-resilient legal system,

which emphasizes the need to focus on adaptive capacity of both institutions (federal

and non-federal) and ecosystems. Moreover, a poly-resilient legal system also serves

as a bridge between science, policy and people. In order for this to be effective, the

law has to emphasize and focus on co-benefits for environment, society and law74,

which would serve as an incentive for involved stakeholders, communities and

decision-makers to uphold environmental standards set up by adaptive management.

This is especially important for the adaptive law itself to recognize, facilitate and

enforce co-benefit mentality into its governance. Therefore, goals are intended to

offer a holistic vision and intent to manage subject matter, in our case water law in

irrigation. In my research, I can draw this from the Water Code’s objectives in the

general section, and preliminary documents of the law drafting. I will be looking at

links and information on the focus of the law and any connection to co-benefit system

or emphasis on poly-resilience.

Second feature refers to adaptive law structure, referring to polycentricism with a

focus on multimodal and multiscalar responses. Polycentricism is identified by

multiple sources of authority and decision-making, where emphasis is drawn from

both governmental and non-governmental sources; direct regulation and economic

and voluntary instruments play a large role here. Arnold and Gunderson argue that

polycentricism is beneficial for resilience and adaptivity of the law because it allows

experimentation and innovation, enables risk diversification, characterized by

redundancy of resources, and enables better problem solutions based on diversified

scales, scopes and speeds of problems.75 This feature can also be referred to as a

decentralized system of decision-making, which is one of the defined features of

emergence of new environmental governance I addressed earlier. Multimodality refers

to the use of multiple methods in addressing policy goal in an integrative manner,

which draws from facilitation of multiple actors’ methods and tools to address a

problem. 76 Multiscalar responses refer to the multiple scales of ecosystems and

74 Arnold - Gunderson 2014, p. 9-12. 75 Ibid. p. 13-14. 76 Ibid. p. 14-15.

22

institutions, such as environmental, social, legal, economical, local, national, regional

etc. The need for nuanced multiscalar strategies and structures is emphasized.77 In my

research, I will look for indications of poly-centrism, and multimodal and multiscalar

qualities of the law in the Water Code, secondary legislation and ministry documents.

Third feature in assessing adaptivity of law refers to methods, which are meant to

facilitate resilience through adaptation to changing conditions, standards that rely on

context, tolerance for uncertainty, flexible discretionary decision-making. The

following methods have been highlighted, which would balance flexibility:

discretionary decision-making governed by standards and context; adaptive planning

and management; and evolution of the law in discussion.78 Arnold and Gunderson

highlight that discretion is not the problem, it is the standards appropriated to relevant

context that is lacking for it to perform as needed. These standards should consider

environmental and social context and the long-term impact. When addressing

adaptive planning and management accountability mechanisms are highlighted. In

terms of the context, the evolution of a particular law that is important to the problem

to the changing conditions is important to consider when achieving resilience.79 In my

research, I will look for indications of these methods and qualities of the law in the

Water Code, secondary legislation and ministry documents.

Finally, the fourth feature refers to processes of adaptive law, focusing on an iterative

process with feedback loops and accountability mechanisms. Feedback loops inform

decision-makers on whether the decision is adaptive or not by monitoring, assessing

and learning from and adapting to the decision. It is important to highlight here that

this process is continuous, and the need to evaluate impacts over time is necessary. It

is also important to define standards and boundaries that can be accountable for and

can have an impact on the level of resilience. 80 In my research, I will look for

indications of an iterative process of decision-making and accountability mechanisms

in the Water Code, secondary legislation and ministry documents. The formulation of

these goals is very important to inform resilience of structures, methods and processes

of the law.

77 Arnold - Gunderson 2014, p. 17. 78 Ibid. p. 18. 79 Ibid. p. 21-23. 80 Ibid. p. 23-29.

23

2.4 Criteria of assessment

These key features are very difficult to measure in practice, and would need further

analysis based on the legislation. To combine these criteria I will take away the

structure of comparison table, key governance mechanisms from principles, key

principles for climate change adaptation law, and key limitations needed for adaptive

management to function in legal context. Importantly, the table below reflects

substantive and procedural elements of adaptive law, compliance and enforcement

tools, as well as safeguard features of these processes. Overall coherence needs to be

kept in mind in order to follow through and along adaptive and resilient processes of

the regulation.

Thus, precise set of analytical tools for this assessment is outlined in Table 3 below.

Each set of instruments and features of adaptive law have been aligned against goals,

structure, methods and processes of the law. As a result, the goals and structure of the

law refer to more substantive feature, while methods and processes refer to procedural

features. When addressing the feature of the irrigation law in Kazakhstan, I will assess

whether it has any of the relevant processes and instruments listed to the right. The

law will be considered overall adaptive if it fits more than half of the criteria or at

least 2 of the features are evident. In that situation the less adaptive features of the law

will be discussed and a set of general recommendations based on those will be

revealed in the final chapter.

Adaptive Feature Demonstrated by the following tools and

items in the regulation Substantive

element:

Goals

• Resilience with co-

benefits and attention to

adaptive capacity

• Goals with either wide or narrow scope

and exemptions (outlined in general

section of the law)

• Duty to provide reasons to changes in

the law using scientific knowledge for

justification

• Coherent and complimentary goals in

relating regulation and instruments

Procedural

element:

Structure

• Polycentric and utilizes

multimodal and multi-

scalar responses

• Multiple sources of authority for

decision-making enabling autonomy and

effective coordination via consistent

sectoral meetings

• Availability of multi-sourced data and

information

• Complimented by policy level and

economic instruments

24

• Law governs hydrological boundaries

(ex. river basins) and not administrative

boundaries

Procedural

element:

Methods

• Adaptation to changing

conditions

• Standards relating to

contexts

• Flexible discretionary

decision-making

• Consideration for environmental and

social context and the long-term impact

through long term planning instruments;

• Quantitative standards, including locally

appropriate standards

• Permit systems: time limited licensing

• Consultation processes

• Enabling of a learning environment

Procedural

element:

Processes

• Iterative process with

feedback loops

• Accountability

mechanism

• Procedural flexibility and

safeguards

• Enforcement and

compliance mechanisms

• Review periods and overall monitoring

of multiple indicators, which enables

scientific and social learning (lessons

learned)

• Disclosure and participation in decision-

making for all actors

• Access to justice

• Clear coordination, enforcement

procedures and implementation paths

• Non-compliance processes

• Binding obligations

Table 3. Adaptivity criteria for assessment of the law

25

3 REGULATION OF IRRIGATION IN KAZAKHSTAN

3.1 Contextualization of irrigation issues in Kazakhstan

This section elaborates further on Kazakhstan’s current situation regarding climate

change, water management and security, and legislative issues that are in place.

Climate change poses important consequences for water governance both in law and

policy, especially in the perspective of environmental protection, social and

institutional protection and in maintaining sustainable development goals; in the

context of Kazakhstan, these environmental changes cause an even bigger challenge

to the already problematic management and use of water resources.

This is visible in water quantity reduction and challenging institutional arrangement

affecting water use. Central Asian continental climate conditions establish Kazakhstan

as one of the driest country in Asia. Its water resources, both groundwater supply and

surface water supply, are highly affected by agricultural practices, municipal

watershed practices, industry activities and quality of transboundary water flow in the

country. The rate of desertification in the country is 66% of the land, which is further

impacted by expected climate change effects. 81 Kazakhstan’s National

Communication III-VI to UNFCCC highlights heavy impact of climate change on the

economic growth, particularly the agricultural sector, where irrigation practices, and

available drinking water supply remain most vulnerable.82 This is especially volatile

as the country’s agricultural activities took up over 2,5 million hectares of land in

2000, and bad practices have degraded the land of which 40% has been deemed

unusable anymore in 2013.83 Agricultural activities take up only 4.8% of the GDP84

and approximately 73% of the total water demand is in irrigation85. The government is

intending to increase its agricultural capacity and contribute more to its economic

development 86 , yet there are few signs indicating consideration of institutional

improvement over water management, of environmental impact on land and water,

and of climate change adaptation strategies in an already struggling water

management system.

81 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 14. 82 Ministry of Environment and water resources of the Republic of Kazakhstan - UNDP Kazakhstan -

GEF 2013, p. 12. 83 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 14. 84 The World Bank Group 2016. 85 Global Water Partnership 2009, p. 10. 86 Ministry of Agriculture of the Republic of Kazakhstan 2017, p. 4.

26

Average air temperature has been increasing annually with the speed of 0.28 ºС every

10 years,87 and already expected environmental impacts include decrease of water

resources. Extreme weather events related to water have been steadily on the rise

affecting population and the economy, which has cost the government approximately

68.6 million USD between 2002-2011 that primarily were in the form of droughts,

floods and landslides. 88 Moreover, as a result of bad agricultural and irrigation

practices, land degradation and desertification processes increased; 66% of the total

area of Kazakhstan is prone to desertification.89 Considering bad water use practices,

the current expected water usage, and negative climate change impacts, the

government expects decrease of water flow by 11.43 km/ year out of 44 km/ year by

2040. 90 Kazakhstan has 8 primary river basins among which administrative

governance has been split. Each river basin is spread across several oblasts (states) of

the country, where local executive bodies (akimats) are responsible for further

implementation and offering information for CWR. Among 8 river basins there is a

total of 22.8 km3 /year of water resources available, of which 12.2 km3 /year is used

for irrigation.91 Groundwater supply is heavy, approximately 15.4 km3 /year in 2013,

but the usage is untapped to its full potential as a result of limited development and

differing uses between regions. 92 Overall, current water resources are not used

efficiently, and with increasing climate change impacts and inefficiency, Kazakhstan

will face major issues in the future.

To elaborate on water shortages issue, I will briefly outline regional environmental

landscape. This is not the focus of my research, but it is important to consider the

weight of the sensitive situation regarding water flow decrease and an important for

effective management. With the increasing impacts of climate change, Kazakhstan is

a vulnerable region to droughts and floods; which can be seen through rapid changes

of water flows in the Syr Darya river basin and shrinking of the Aral Sea.93 The

87 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan –

GEF 2013, p. 14. 88 Ibid. p. 12 89 Ibid. p. 15 90 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7, p. 22-28. 91 Ibid. 92 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 10. 93 McKinney 2003, Wegerich et al 2015.

27

literature highlighting vulnerability of Central Asian region to heightened impacts of

droughts also emphasizes human-made contributions to the ongoing struggle to

maintain stable water levels.94 Kazakhstan is a downstream country, where 50% of the

total surface water comes from China, Russia, Uzbekistan and Kyrgyzstan. 95

Specifically to water quantity issues, upstream countries Kyrgyzstan and Tajikistan

are directing that water for hydroelectric dam operation, restricting water flows to the

other countries that use water for irrigation.96 While downstream countries heavily

depend on water supply from those rivers, which is inefficient and over-extensive.

With increasing climate change impact in melting of ice sheets in the mountains and

increase in temperature have facilitated increased river flows and desertification.97 As

a result, Kazakhstan is both facing possible water scarcity as a downstream country,

which makes this a political issues, and due to dry conditions and surface water

management issues. As a result, Kazakhstan is facing a problematic challenge in

managing its water resources, not only with maintaining its regional water politics and

transboundary water agreements, but also with internal management of water use,

particularly for agricultural purposes.

Incidentally, the government has sought to achieve more efforts in mitigation front,

with no explicit mention of adaptive policy or regulation planned in the country

frameworks for developments.98 Water security issues do not stem only from lack of

usable water resources, but also from institutional arrangements, management and

regional political context.99 Trends suggest poor management in place: water use

decreased to approximately 35% in 2013 based on 1990 levels of water available for

agriculture. 100 For instance, Presidential Decree on “Approval of governmental

program on development of agro-industrial complex of the Republic of Kazakhstan

for 2017-2021” from 2017 No. 420 has highlighted some of the primary issues in

using water in agriculture: lack of efficient standards for irrigation technologies,

which cause low quality irrigational systems where water leakage is common; low

94 Ziganshina 2009, Libert 2008, McKinney 2003, Wegerich et al 2015, Fay et al 2009. 95 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 5-6. 96 UNECE 2011, Wegerich et al 2015. 97 UNECE 2011. 98 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan –

GEF 2013, p. 16. 99 Stucki - Sojamo 2012, p. 399–418. 100 Ministry of Agriculture of the Republic of Kazakhstan 2017, p. 13.

28

water prices for users as a result of heavy government subsidies, causing inefficient

water uses; lack of regulation regarding condition standards of irrigation water

facilities and no requirements for technology maintenance. 101 A potential future

problem that may develop as a result of these challenges is food security concerns as

water usage is increasing and water supply depleting, unless water practices and

management in agriculture are changed. Bad practices stem from not only institutional

limitations but also budgetary limitations and ineffective legislation, which have been

identified by the government as one of the 10 issues in managing water resources in

agriculture.102 There has been a lack of financial support to monitor and control of

water usage.103 Specifically, the institutional arrangement over water management has

not been clearly outlined by neither the Water Code, the Land Code, nor CWR under

MOA. As a result, existing institutional arrangements and lack of clarity and capacity

only contribute the already questionable water situation in Kazakhstan that is

increasingly susceptible to the rise of temperatures. For instance, there is a significant

lack of coordination between responsible institutions, particularly where several cover

the same river basin; this is the result of the lack of transparency regarding all water

management issues in the face of regulatory compliance. 104 Sound institutional

arrangements are key in maintaining good management practices.

Nevertheless, current legislation is imperfect to address these encompassing problems

in a holistic manner. The existing water law is rigid in terms of coordination issues

and lack of transparency, especially considering public participation and access to

basic information regarding compliance and monitoring reports. Moreover, the law

does not establish clear responsibilities for implementing agencies, and the result is

lack of coherency in management. Another potential issue is that the current

legislation may not take into account long term, mid-term and short-term changes to

the environment from of climate change.105 For instance, Governmental decree on

water management active 2014-2016 has outlined current situation with water use,

causes of problems and institutional challenges. This is done by CWR from Ministry

of Agriculture and has been approved by the president in 2014, but unfortunately was

101 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7. 102 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 26-31. 103 Ibid. 104 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7. 105 Ibid.; Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 26 -31.

29

deemed inactive based on lack of precise guidance ahead. As a result a new

agricultural development decree has been issued as a replacement to emphasize use of

water in agriculture to improve industry performance, where water resources plan has

been addressed, but primary steps have been traded in favor of economic development

of agricultural sector.106

It is important to perceive whether the current irrigation laws are adaptive enough in

the face of clear water issues heightened by climate change. Adapting the system

decreases vulnerability to climate change, and approaching it from a legislative is key

for institutional and management resilience. Moreover, the assessment of adaptivity of

national laws aims at assessing the capacity of the country to adjust their internal

legislation, whereas assessing adaptivity of Kazakhstan international obligations

depends on a negotiation process, which takes into account another country’s interests

and would go beyond the straightforward analysis of adaptive capacity. As was

emphasized earlier, an important condition is the balance between high uncertainty

and controllability and the low risk of the issues of water management in agricultural

sector in Kazakhstan. This is to be measured by addressing the system of irrigation in

place, strength of governance management in contrast with climate change and other

social or environmental impacts affecting water management. The level of uncertainty

is measured by scientific information on variation of climate change impacts in highly

irrigated regions in Kazakhstan. High controllability is measured by the standards and

interventions the law imposes, and by the level of managerial flexibility established.

The low risk is measured by assessing impacts of intervention in management of

irrigation. This is very difficult to measure now, and this is not precisely the aim of

my research, yet it is important to point out that the conditions adaptive management

in law can yield most successful results.

I am interested in how climate change impacts are affecting legal developments and

legal capacity to cover issues arising from fast paced changes in governance,

economy and society at national level. To this end, in assessing irrigation and water

laws in Kazakhstan I am also looking at water management. My aim is to understand

what mechanisms these national laws on water management in agricultural sector

106 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7.

30

contain to allow for water management practices to change and adapt to such trends in

Kazakhstan, and how adaptive law can improve them. If adaptive law is requires then

a set methods for measuring adaptivity needs to be developed. I will then analyze the

national legislation, and draw conclusions on ways to develop the national legislation

from an adaptive law perspective.

3.2 Legislation on irrigation

3.2.1 Legal set up

The following addresses primary laws and processes applicable to water law in

agricultural sector, specifically relevant to irrigation of agricultural land. The purpose

of this chapter is to present national water law instruments that contradict climate

change adaptation in irrigation and water use, in both their intention and effectiveness.

As a result of Kazakhstan not establishing a direct legislation towards climate change

adaptation 107 , water law in irrigation must have processes that prepare it to the

inevitable changes. Kazakhstan is a civil law state, which means that its hierarchy of

laws is clearly defined as per Article 10 of the Law on Legal Acts No. 480-V. I will

begin with a closer look at articles in national Water Code, which offer a

comprehensive direction in managing water use in agriculture. I will then look at the

adjacent laws, acts, decisions, governance structures of the law and processes that

stem from the Water Code, in order to understand how the law is designed and what

are the processes involved. I will also link with national adaptation plans and

intentions, which align with water usage priorities of Kazakhstan. Finally, I will offer

my brief assessment of the design of the regulation and its consideration for climate

change impacts.

Here are most relevant laws to water management in irrigation listed in hierarchical

order based on Article 10 of the Law on Legal Acts No. 480-V:

• Codes: primarily the Water Code 2003 No. 481-II and Land Code 2003 No.

442-II

• Laws

• Presidential decrees

107 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan

– GEF 2013, p. 16.

31

My assessment focuses primarily on Water Code and Land Code while references to

other related laws and presidential decrees will be stated as an action derived from

these codes.

3.2.2 Institutional set up

Kazakhstan’s Water Code is a sector specific consolidated normative law, outlining

use and ownership rights with regards to water and water facilities. It has been

divided into the general section and the special section, where it addresses more

specific condition of water use and management. The State exclusively owns all water

bodies and land occupied by them (Article 7): CWR is an authorized body of the

MOA established to manage all water resources in usage and protection, highlighting

very centralized focus of water governance in Kazakhstan.108 CWR is charged with

implementation and control of water use and protection, as well as with issuing

permits and approvals for water use.109

MOA has issued a decree on the CWR’s range of responsibilities 2014 No. 19-5/519,

where its main tasks are to ensure coordination in implementation governmental

policy in water resources governance and control in management of water resources.

Importantly, decisions on provision of water for irrigation purposes are decided by

CWR. This law outlines 24 total functions of the CWR, among which are

development of water use and protection schemes, monitoring of quality and use,

development of informational database available for interested persons, issue decrees

relevant to the Committee’s competency, determine yearly water use limits, ensure

compliance with international agreements on transboundary waters. As a result, CWR

is the primary responsible governmental body that addresses implementation and

management of water resources based on national legislation. It has the authority to

issue laws based on consolidated information gathered from local administrative

authorities: 14 oblasts, municipalities and city akimats, responsible for water supply,

planning and program implementation based on local budgets.110 The role of CWR is

very important when assessing irrigation management, especially when considering

how much weight the Water Code puts on CWR to implement most of its clauses.

108 Al-Fati 2008, P. 152. 109 Ibid. P. 153. 110 Al-Fati 2008, p. 154.

32

Importantly, the Water Code is firmly reliant upon basin management approach,

which has been streamlined into the law in 2004. Chapter 7 Articles 40-43 outline

functions and aims of CWR’s regional bodies, also called basin management

organizations, to carry out management of use and protection of water in basins.

There are a total of eight basin inspection organizations around eight primary basins

in Kazakhstan: Aral-Syr Darya, Balhash-Alakol, Ertiss, Esil, Zhaik-Caspian, Nura-

Sarysu, Tobol-Torgai, and Shu-Talas basin organizations. 111 These basin

organisations are primarily responsible for control and administrative approval of

water user’s declarations and payments, and for reporting and planning to CWR

(Article 40). Moreover, basin agreements are established between basin organizations,

local executive bodies and other entities to coordinate water management activities in

the basin (Article 40).

Article 43 establishes Basin Councils as advisory bodies that are responsible for

consulting and advising participants of the basin agreement, and consist of local

representative and executive bodies, which can cover several oblasts depending on the

basin, territorial bodies, water users and stakeholder representatives. Importantly,

Basin Councils represent the only platform for non-governmental organizations

(NGOs) and other water user representatives to partake in overall decision-making

and governance in a specific basin on management of water112. Article 63 states

provision on activities by public associations in water resources use and protection

that are to be carried out based on the statues reviewed by the government authorities.

Representatives of these organizations are part of the Basin Councils, where they can

express their views and offer recommendations. They are allowed to conduct public

control of water resources use and protection, and base their recommendations on

those findings (Article 63). As a result, there is very limited representation of the

water users in the reports to the CWR, and the crosscutting issues and factors in water

use is lacking. The Basin Council serves only as an advisory role to basin authorities

(Article 43); no other means to reach water governance is available to users, as

government authorities centralize decision-making.

111 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017a. 112Al-Fati 2008, p. 152.

33

Governmental Decree on establishing rules on relations between different oblasts No.

21 states seven rules, which reinstate Water Code articles and add that the Basin

Councils are only formed after basin agreements have been established, and the basin

authority takes their recommendations every year before issuing a decision. The issue

that has been flagged is the lack of coordination and weak communication between

different water resources authorities over functions and management.113 Moreover,

CWR has criticized that it does not have enough authority, independence and capacity

to manage other water bodies in an effective way,114 and limiting budgets have been

distributed so far, both to CWR and river basin organizations.115 As a result, the

implementation of the basin approach has not yet reached its potential due to lack of

clarity in the law on the structure of governance between local authorities and CWR,

and few non-state representatives involved in management of the water resources.

3.2.3 Water Code

The aim of the Water Code is outlined in Article 3 is to achieve and maintain safe and

optimal level of water use and protection in order to protect and improve living

conditions and consider the environment. This based on the new approach on

integrated water resource management and uses, and on sustainable development

principles.116 Integrated water resource management (IWRM) has founds its way in

Kazakhstan’s policy objectives through World Summit on Sustainable Development,

Johannesburg in 2002117, while sustainable development have been streamlined in

Kazakhstan 2030 Strategy118 . As a result, Presidential Decree on the Concept of

Transitioning towards Green Economy No. 577 was developed in May 2013,

highlighting necessary problems with water management and establishing policy

goals towards development of improved water management practices and institutional

arrangements. Moreover, IWRM is also strengthened by the basin approach

established in Chapter 7 of the Water Code, further highlighting Kazakhstan’s path

towards integrated management of water resources. The Water Code also puts

importance to coordination of tasks between different bodies within the boundaries of

113 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7; Al-Fati 2008, p. 157, 114 Al-Fati 2008, p. 157, 115 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7; Al-Fati 2008, p. 152,

Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014. 116 Petrakov – Kenshimov 2012, p. 18. 117 Beisembin 2015, p. 16. 118 Strategy 2050 of the Republic of Kazakhstan 2017.

34

a centralized system of governance, which is a step further towards implementation of

IWRM.119 This aspect has been stated in the law but no enforceable procedures or

monitoring systems for communication have been established. Nevertheless, the

presence of IWRM in the law demonstrates State’s commitment to improve

governance of water resources. IWRM definition is in the law, and the aim to achieve

it is established; yet no other enforcement or structural changes have been done. There

is no clear plan of action for this to be implemented in practice in the governance of

local authorities, and very little can be achieved with current uncoordinated system

between different authorities in place.

The role of the Water Code in this endeavor is to direct development of the water

sector and establish priority of water use, as well as clearly stating the role of

implementing agencies and bodies.120 Article 2 of the Water Code specifically states

its purpose to provide a good legal “framework to support and develop sustainable

water use”; manage “use and protection of water resources, irrigation and drainage

systems and water management facilities”; and “development of irrigation and hydro-

technical melioration of lands”. With regards to disaster management, Article 39

paragraph 7 of the Water Code states that local government organizations are

responsible for organizing activities for disaster management, such as droughts. While

Article 40 paragraph 8 states that water management organisations are responsible for

managing consequences from natural and human induced disasters. Moreover, in

relation to use in irrigation, Article 7 allows privatization of state owned lands of the

water fund that have water facilities such as irrigation and water facilities systems of

regional and district significance. This can also be in the form of common ownership

between two or more users, and it is regulated by the Land Code (Article 133). As a

result, water funds remain in the ownership of the government (Article 8), while water

fund’s territory and irrigation facilities can be privatized. Article 29 establishes that

the water facilities for agricultural use are state property, but can be used as common

use if leased or sold to the water users or their associations. Most of these cases the

areas are taxed when used. Regarding common use, MOA’s Ministerial Decree on the

rules of common water use No. 19-1/252 establishes public use of water resources and

facilities without restrictions. Specials zones are established by local authorities to

119 Al-Fati 2008, p. 153. 120 Petrakov – Kenshimov 2012 Part 1, p. 20.

35

separate public water use to agricultural services. Article 29 of the Water Code also

states that certain users can be responsible for maintaining the standards irrigation

facilities under the conditions established by the law. Unfortunately, the maintenance

can be extremely costly and would need approval from the government. Territories

with these agricultural systems that are of special strategic importance to the

government can be partially financially supported regarding maintenance fees.

Chapter 18 of the Water Code Special Section is on the use of water bodies and

facilities in agriculture. It specifically elaborates on the uses in irrigation, where based

on the water use planning documents of water users downstream, the upstream water

users need to prepare annual applications in order to get the necessary water volumes

for their use. Water management authorities shall set water use limits to them (Article

95 paragraph 2). Specialized government agencies conduct monitoring and

assessment of irrigated lands using available budget (paragraph 7). The Water Code

also establishes governmental support to water users in agricultural sector by

introducing water use subsidies (Article 135), which are managed by local executive

bodies of oblasts and akimats (Article 39). MOA’s Ministerial Decree on Establishing

standards for governmental services regarding subsidy provision to water use for

agricultural industries No. 6-4/1072, and Ministerial Decree on the Rules of

subsidizing services for water provision for agricultural needs No. 6-3/597 outline

basic subsidy rules. If the water fee goes over 0.20 tenge/m3 or 0.000515 euro (1 euro

= 388 tenge121). The water price for agricultural use is extremely low, and government

is willing to provide additional subsidies if it goes over 0.20 tenge/m3. Importantly,

water services are already virtually free, and governmental support to reduce the costs

even further provides even less incentive to use water resources responsibly. This

factor emphasizes a clear gap in efficiency of water management, and will be further

addressed in Chapter 4.

Chapter 18 Articles 96-101 also refer to irrigation and related technical facilities

condominium, which is when the land can be owned by private or legal person, while

the system of technical water facilities belong under common right of use (Article 96).

It also refers to rights of formation and termination of it, as well as participation rights

121 XE Currency Converter 2017.

36

and responsibilities. This is to connect irrigated lands with agricultural technical

facilities, such as irrigation canals and facilities that the State has established.122 This

is also to specify rights and responsibilities of private landowners that use and

maintain these facilities. Therefore, the Water Code Section 4, Chapter 13 elaborates

on water rights; regarding irrigation Article 66 on special water use states that permits

are required in order to access and use water and relating water facilitates. Special

procedures are established to receive permits. Article 71 and 72 establish right and

responsibilities of water users. The Law on Governmental regulation of agro-

industrial complex and agricultural lands development No. 66-III also states

responsibilities and rights of different levels of government authorities, and regulation

of development and maintenance of current systems in place. With regards to

irrigation the law goes in more detail on aspects of irrigation system monitoring and

maintenance by authorities. The government has recognized the importance of the

water sector, and has launched several programs to address limitation in the law.

Moreover, Ministerial programs on irrigation improvement have also been launched,

but little information is available on those at all, and no positive results have been

reflected so far. 123 Moreover, MOA and CWR are not transparent enough and

information is not communicated well between local authorities, such as akimats.

Also, very little information about the work and decisions made is available to the

public; hence it is difficult to assess how governance of irrigation practices and water

management is done.

3.2.4 Land Code

The primary relation of the Land Code to irrigation has to do with land plot ownership

of irrigated areas. The Land Code outlines the rights of landowners in relation to

irrigation practices. Article 64 states that land owners and users have the right to

conduct irrigation works according to the established demands in consideration of

sanitary, environmental and other standards. Guaranteed sustainable access to water

rights are extremely important for irrigation practices124, and the Land Code states

that territories used in agriculture must have a working irrigation system, connected

with water supply (Article 97). Irrigated land and water facilities for irrigation must

122 Petrakov – Kenshimov 2012 Part 2, p. 69. 123 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7. 124 CA-Water Info: Database. Ziganshina, p. 7

37

be assessed in close connection to each other. Article 97 of the Land Code specifically

states that the off-flow of water provision must not be lower than 75 percent within

existing system efficiency. This means that in the case where the state-owned water

facilities are leased, sold or donated has to be done within the norms of the Land Code

Article 98, paragraph 4, which requires that it has to be based on preliminary planning

and available information from soil examinations, survey etc.

Moreover, Article 99 of the Land Code outlines the use and maintenance of irrigated

areas with access to facilities, which emphasises the role of the authorities to decide

on the extent of use and maintenance of irrigated lands. The Land Code regulates the

rights of use to the irrigated land, and the state may grant and transfer areas of

irrigated lands to private persons (Article 97). Monitoring on the state of irrigated

lands is also established in Article 99, where if lands are transferred to private persons

and legal person, they must comply with existing plans to maintain all of the irrigation

system and facilities. This is an important feature, as it emphasises that the land

owners must comply with the state plan of irrigated lands and maintain the irrigated

facilities themselves. It has been established that the state of these facilities and

irrigated lands has been in low conditions, which is the result of poor practices and

technologies in place.125 Therefore, it is evident that the State must upgrade its plans

and invest into updating local irrigation systems and facilities, because private owners

do not have their own authority or own capacity to improve their practices. The

centralised nature of this again highlights the problem of governance, where the state

has overlooked some aspects of management of irrigated lands, which led to

inefficiency of use.

The Water Code is the primary legislation that governs irrigation practices, users

rights, and establishes a governance mechanism over water management. The Water

Code also governs water facilities, but the irrigation lands and their quality are stated

in the Land Code. The two laws are complimentary to each other in terms of irrigation

law, as they establish certain synergies and coherence between each other. Both codes

are a basis for additional laws on irrigation passed.

125 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7.

38

3.3 Discussion

The water basin approach highlights the strengths of the Water Code, and demonstrate

potential for adaptive capacity of the legislation. But this concept has not been fully

integrated into the law and governance of water in irrigation. There is a lack of full

enforcement features of these concepts, and little evidence is available on the

efficiency of these measures. For example, water use plans and basin agreements

developed by the basin organizations contain little involvement of users and NGOs,

and their issues or information is not reflected in government activities. These yearly

plans and basin agreements lack crosscutting issues not only in irrigation, but also

within whole water sector in Kazakhstan.126

The governance structure and management system of the laws described support the

centralized nature of the water law in Kazakhstan. Considering limited budget and

capacity in place based on current issues highlighted in Chapter 1.1, such centralized

systemic structure is inefficient without proper investment and time attributed to the

development of operations the water management in agriculture. These budget

constraints undermine implementation of these water management plans127, and little

information is available on the progress of these plans and basin meetings. MOA

Decree № 19-5/519 does state the responsibility of the CWR to share information

with the public and make it easily available upon request, yet little information is

available at all.

The current water use fees are very cheap and government is heavily subsidizing them

as well, providing little incentive for the user to protect, save or maintain water

quantity. The collected water fees then are used to maintain water facilities in the

country128, which are now in very poor condition. Moreover, there has been little

maintenance of the drainage network since 1990, and some parts of the agricultural

drainage are outdated and need upgrading, FAO estimates 90% of the vertical

drainage systems are not used as a result of high costs.129 These issues in structure,

technology and maintenance of irrigated systems are very important to ensure no

water leakages and better water quality available.

126 Al-Fati 2008, p. 153 127 Al-Fati 2008, P. 153 128 FAO 2012, p. 65 129 Ibid. p. 70

39

Suitable laws should be present to ensure public incentives to save and protect

available water used for agriculture, by changing fixed water price system and

introducing different subsidy scheme. The law should also allow for more

communication between responsible authorities and more information available to the

public. Water users representatives should have a more active part in decision-making

and planning in the water sector by participating strongly in the basin organizations,

not just in Basin Councils. Most of these issues are somewhat addressed in the law,

users rights and responsibilities are stated at length, yet there is little enforcement in

place due to lack of clarity in the law. If CWR, basin organizations and local

authorities were more decentralized, the lack of clarity would encourage a diversity of

actions implemented based on the conditions and context of the water use and

irrigation practices. But the centralized system gives little room for interpretation for

the authorities who do not have the capacity to implement and enforce.

There are no explicit adaptation commitments in the regulatory system, as the country

has been heavily focusing on mitigation efforts, but some adaptive elements are

embedded in the legislation. In order to strengthen their impact, legislation needs to

explicitly highlight these adaptive efforts and processes, or already contain the

processes and methods in its legislation. But so far, in the context of climate change

measures, overall, Kazakhstan’s water legislation has not demonstrated in practice

active actions towards climate change adaptation or involved particularly strong

features for adaptation in the law in general due to heavily centralized nature of the

law lack of transparency. This is clearly evident with already challenging legal

processes in water management, and less so with the lack of national adaptation

strategy policy. Current institutional organization, measures and standards of the

water law demonstrate little evidence for the potential to withstand increasing

problems with climate change impacts. As has been stated in the governmentally

approved program on agricultural development, natural disasters in the form of

droughts and floods have damaged numerous agricultural facilities and have taken a

lot out of the budget provided to maintain current structures.130 There is a need for the

130 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7.

40

government to prepare adaptation mechanisms or improve those already in place in

the law to address impacts of climate change.

Nevertheless, the existing water law is rigid in terms of coordination issues and lack

of transparency, especially considering public participation and access to basic

information regarding compliance and monitoring reports. Moreover, the law does not

establish clear responsibilities for implementing agencies, offering duality of

responsibilities and no boundaries available. The result is lack of coherency in

management. Another potential issue is that the current legislation, particularly the

Water Code, does not take into account long term, mid-term and short-term changes

to the environment as a result of climate change, how is law maladaptive and

importance of international rivers. There is no mention of these possibilities in the

Code, and the government only recently started to develop governmental programs on

sectoral development (to be discussed in Chapter 4). This undermines effective water

management in an already stressed environment and poses questions how the law can

manage in the future. However, Kazakhstan’s water law has the potential to improve

its adaptivity and effectiveness by further developing water basin approach in its

legislation. This means we can build upon these foundations towards a more adaptive

and resilient water law.

As was indicated in Chapter 1, adaptive law is needed where long-term stability in

decisions is paramount, where implemented decisions cannot be easily changed, and

where the agency’s final authority towards a decision is essential.131 In the case of

irrigation law in Kazakhstan, the only feature that does not welcome adaptive law is

the centralized nature of the regulation of water resources. Otherwise, there is a

potential to build more capacity to enable changes in the legislation regarding

decisions, relying on the importance of overall importance of long-term stability in

the substantive goals of the Water Code. Adaptive law can benefit Kazakhstan’s

irrigation law and support its resilience in the face of increased droughts, floods and

landslides, as well as overall changes temperature. It can offer a flexible and iterative

decision-making based on scientific knowledge available empowering stakeholders

and enabling efficient and smart regulation design in place. The challenge for this

131 Craig – Ruhl 2014, p. 13.

41

remains in the face overall cost to implement this in practice. More will be discussed

in Chapter 4. As a result, we need to evaluate Kazakhstan’s adaptive capacity of the

water law in the forthcoming environmental changes in an already challenged water

management regulation and sensitive regional water situation. The following chapter

will outline a proposed adaptive law theory and a criteria of assessment of the above

mentioned regulation.

42

4 ANALYSIS OF LEGAL ADAPTIVITY

4.1 Assessment against established adaptivity criteria

4.1.1 Goals

The goals of an adaptive regulation are holistic and reflective of complimentary legal

instruments, providing exemptions if too broad; refer to duty to provide reasons for

changes using scientific knowledge for justification; and offer co-benefits for

involved stakeholders and interlink with benefits for the environment, society and

law.

On holistic and reflective goals, the Water Code establishes a broad approach towards

facilitation of resilience by outlining substantive goals as “achieving and maintaining

environmentally safe and economically optimal level of water use” in Article 3.

Overall, these substantive goals remain coherent throughout the legislation.

Exemptions are only referred to in the context of ownership of land near water and

water facilities that are of strategic significance to the government, which are not

available for private ownership (Article 25). No other exemptions are cited

establishing a broad nature of the Water Code. To compliment this broad focus of the

goals, the Water Code is supported by a set of specialized laws that cover more

focused matters of regulation. Specifically, on water use and irrigation practices the

Law on Governmental regulation of agro-industrial complex and agricultural lands

development No. 66-III, Presidential Decree No. 420 on agricultural development,

MOA’s Ministerial Decree on the rules of common water use No. 19-1/252, MOA’s

Ministerial Decree on Establishing standards for governmental services regarding

subsidy provision to water use for agricultural industries No. 6-4/1072, and

Ministerial Decree on the Rules of subsidizing services for water provision for

agricultural needs No. 6-3/597 and others. Importantly, these related legal instruments

build on existing information in the Water Code (and Land Code), and offer further

elaboration inclusive of exemptions to the codes. For example Articles 36, 37, 38, 54

and others explicitly state that certain notions are exempt and are referred to a

different legal instrument. All of these demonstrate that special laws act almost as

exemptions if they contradict the Water Code. The Land Code itself demonstrates

how coherent the irrigation legislation is, as it offers further elaboration on irrigation

43

management from the perspective of land ownership (Articles 64, 97-99). This

demonstrates a level of substantive coherency in complimentary legislation. The goals

overall compliment each other and offer an understanding of the legislation’s role in

managing water use, which is continuously referred back and forth between other

related laws.

On justifications for changes in the law, the Water Code emphasizes that standards

and limitations of water use must be based on scientific knowledge available, but it

does not require duty to provide reasons for changes in the law to be based on

available scientific knowledge. For instance, Article 36 paragraph 6 explicitly states

that limitations of water use should be based on scientific standards, and Article 46

states “schemes for the integrated use and protection of water resources shall be

developed by the authorized body together with the scientific and specialized project

organizations with participation of the concerned government agencies”. The role of

national sources of scientific information and research is to inform the state on the

ongoing changes in the water standards and use (Article 46). Nevertheless, there is no

explicit article requesting duty to provide reasons to the changes in the law, instead it

states that scientific information provided by relevant scientific research authorities is

available to inform the state on any changes. As a result, substantively there is not

enough information offered on the duty to provide reasons for the changes in the law.

This shortage of available information for the public demonstrates a lack of

transparency, indicating a lack of adaptive capacity in this regard.

Co-benefits are continuously emphasized in the goals of the Water Code. This is

demonstrated by the need for sustainability, and emphasis on both environment and

society throughout the legislation. For instance, the emphasis on the water basin level

approach offers an element of adaptive capacity for stakeholders to receive co-

benefits, as well as to emphasize the need for a more resilient system updated by

existing scientific knowledge (Articles 40-43). Substantively, the law highlights the

need to maintain these benefits with the established procedures (Chapter 7). This

demonstrates an element of resilience in the substantive goals, and attention to

adaptive capacity in the Water Code.

Overall the adaptive capacity is somewhat present in the gals of the legislation, but it

44

is not backed up with enough features in order for it to be effective on a substantive

level. There is potential for adaptive capacity, but further elements of adaptivity, such

as clear information available to what justifies changes in the law and more

elaboration on the extent of scientific knowledge involved in these changes.

4.1.2 Structure

The structure of the law needs to reflect polycentric elements, and utilize multimodal

and multi-scalar responses. In practice, this is demonstrated by multiple sources of

authority; multiple integrative ways in addressing goals using multi-sourced data and

information; multiple scales addressed, such as geographical, environmental, social or

legal; complimentary policy level and economic instruments; and the law governing

hydrological boundaries (ex. river basins) and not administrative boundaries.

On sources of authority, as was found earlier, the Water Code is strictly centralized.

In terms of structure of the legislation, several sources of authority are present for

decision-making in the Basin Councils, but this is only enabled through advisory

purposes to CWR and local authorities (Article 48). These councils need to be further

empowered in order for this to be considered as an adaptive feature of the law; with

the established advisory role, the decision-making power remains with the CWR and

local authorities, and it is evident that the representation of stakeholders is not as

diversified as necessary. 132 Non-governmental entities have some level of

participation in decision-making in managing water use through a yearly set of

recommendations given to CWR for information. It is clear that there is an attempt to

include water users but there is no clear statement about water users association and

representatives that engage in discussions in Basin Councils. While, coordination is

done in the context of water basin approach, which in essence puts significance to

different stakeholders, although does not fully empower them in decision-making.

Basin council meetings occur every year, which result in a yearly recommendation

paper sent to the authorities. No information is available on the kind of

recommendations given, the kind of user representation is presented in these

recommendations, or how CWR or local authorities have used these recommendations

in their work. CWR Ministerial Decree No 19-5/519 states the role of CWR to

132 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7; Al-Fati 2008, p. 157

45

establish environmental standards and limits of use for the users, but no information

on how these decisions are made. It can only be assumed that these are partly based

on the Basin Council recommendations and information offered by scientific

establishment. This significant lack of transparency is a set back to the progress of the

irrigation legislation towards adaptivity and resilience.

On multiple integrative ways in addressing goals using multi-sourced data and

information, and multiple scales addressed, such as geographical, environmental,

social or legal the Water Code identifies varied methods in addressing policy goals,

for instance in implementing sustainability targets the Water Code refers to other

legislation across sectors that address the same sustainability targets for their sector

that compliments and offers a different method in the water sector (Article 3, Article

34, Article 40, Article 72). Nevertheless, methods within implementation of the Water

Code substantive goals are not explicitly diversified. The general attribute of the

Water Code allows for related other laws to pick up on a notion and expand to further

elaborate on the methods used (such as MOA’s Ministerial Decree on the rules of

common water use No. 19-1/252). But this is not clearly stated in the law. On the

scales of responses, the Water Code establishes different levels of focus when

addressing water issues such as addressing water uses for cities, agriculture,

industries, leisure, transport, human health etc. Regarding all these different scales of

water use, the Water Code divides the purposes and assigns a type of water body

responsible and an appropriate authority to manage it. Ecosystems are not diversified

explicitly, but referred to as protected water body areas, special use water areas, and

common water areas that are available to the public. Overall, multiscalar responses

need to be further improved by offering further details on the extent of the responses.

Policy and economic level instruments are incorporated in into the Water and Land

codes. An example of a leading policy program implemented by MOA is Presidential

Decree on “Approval of governmental program on development of agro-industrial

complex of the Republic of Kazakhstan for 2017-2021” from 2017 No. 420. This

policy document outlines a short-term plan of the development of agricultural sector,

outlining different areas of work inclusive of water use management, which is revised

at the end of the program before a new program is put forward (section 3.7). This

policy document goes hand in hand with the Water Code and Land Code by outlining

46

current problems and setting standards for improvement in the next 5 years. The target

of the program is to inform the industry, legislation, science and people on how

agricultural services can be improved, drawing direct links with issues in the

legislation. An example of an economic instrument is Ministerial Decree on the Rules

of subsidizing services for water provision for agricultural needs No. 6-3/597, which

outlines irrigation water costs for water users. Importantly, water services are already

virtually free, and governmental support to reduce the costs even further provides

even less incentive to use water resources responsibly. This demonstrates that this

economic instrument is not well aligned with the target of the Water Code and

promotes irresponsible water use. As a result, this element is not in line the adaptive

theory because it does not offer versatile use of policy instruments and it is not in line

with climate change adaptation goals.

As mentioned earlier, the Water Code strictly follows the water basin approach

(Chapter 7), which confirms its commitment to hydrological boundaries and not

strictly administrative boundaries. This is an adaptive feature of the Water Code, as it

ensures sectorial and environmental boundaries, taking into account a systemic

approach to governance of water resources. In irrigation practices, water basin

approach helps define the amount of water permitted to use for irrigation from a

selected water body. The Water Code outlines general responsibilities of basin

management organizations that are part of CWR in Articles 40 and 43, which include

monitoring and organizational practices. Article 40 also states that these CWR

organizations establish the government’s control over water resources management,

which include permit issues and establishment of limits. Importantly, paragraphs 17

and 18 states that these organizations are responsible for reporting on abuse of the

water legislation to the law enforcement, as well as filing claims for any damage to

state owned water properties. Overall in terms of water basin approach, the Water

Code highlights the process of basin management approach, emphasizing the need to

consider hydrological systems. This is also demonstrated by the management

operations conducted by CWR’s basin organizations, and as a result, this is an

important adaptive feature.

Overall, the structure of the Water Code is somewhat coordinated and contains the

right scales of water management in the form of water basin management. But it

47

remains strictly centralized, which is a maladaptive feature, restricting innovative

responses. Moreover, supporting legislation and economic policy instruments are not

all coherent or complimentary to the Water Code, particularly economic instruments

that go against its principles and goals. The structure would need to evolve in order to

efficiently manage changes in the water management, such as the impacts of climate

change.

4.1.3 Methods

The methods of the law need to demonstrate adaptive capacity to changing conditions,

standards of water use reflective of contexts, tolerance of uncertainty and flexible

discretionary decision-making. This is demonstrated by long term planning

instruments and an enabled learning environment, and available variety of standards,

a permit system and consultation processes.

There is consideration for environmental and social context and the long-term impact

through planning instruments. The Water Code states that water objects are provided

to entities through special, joint and solitary use for short-term use (5 years) and long-

term use (5-45 years). Article 61 allows for planning in longer terms to achieved

optimal use of water resources, reinstates available information for water users.

Moreover, Article 61 highlights that water authorities may develop a national water

resources database. For this, water users need to deliver needed information to keep

the database updated (Article 62). Apart from these articles, the Water Code does not

elaborate any further on long-term planning instruments. This database of information

for national analytical system is not available to the public, and no information is out

regarding how updated it is and how government goes about using this database for its

long-term programs. Governmental program on Agri-industrial development for

2017-2021 approved by the Presidential Decree No. 420 offers a 5-years program for

the development of water management in agriculture as well. This is supported by

indicators, standards and current available information sourced from MOA and local

authorities dealing with water management. Such program is an example of long term

planning instruments in policy that are enabled by the Water Code. Overall, these

long-term planning instruments are allowed but not encouraged or reinforced

48

anywhere else in the Water Code. Therefore, long-term impact does not have as

strong of an influence in the legislation.

Entitlements enable water resource sharing between users according to established

guidelines and rules. In the Water Code Articles 17-20 state different water objects

and rules on their use. For example, for water objects for joint use downstream

owners have the priority for their interests, while still taking into account interests of

upstream users. Water objects of special state significance are those that influence

environment and economy, and they require special attention in the regulation. In

terms of rights to use Article 22 states short and long term rights provisions.

Moreover, with regards to water used for irrigation, water facilities are key in

maintaining good irrigation practices and avoiding leakage. The Water Code outlines

various rights to use related to water facilities related to irrigation, particularly to do

with maintenance (Chapter 4, Articles 24-32). Moreover, for irrigation purposes, users

need to submit an application to local authorities on the amount of water they require

for irrigation yearly, for which they receive permits (Article 95, paragraph 2). In this

regard, different entitlements are provided, split between different uses of water

bodies, for example in agriculture, and different uses of water facilities in irrigation.

Permits systems for water use in irrigation is also in place, which is submitted to local

authorities133 and reviewed against yearly water use plans established by CWR based

on MOA’s Decree No. 19-5/519 Article 14, paragraph 18. These systems are in place,

which confirms this procedural element of adaptivity.

Quantitative standards put in place for irrigation and water use are outlined in the

Land Code Article 97, where it states that the off-flow of water provision to the

irrigation systems must not be lower than 75% within the limits of existing system,

while within preliminary studies and planning establishment, as well as continuous

examinations and maintenance. In other words, areas used of irrigation must have

75% of water flow available, but would still need to be within established limits and

reviews. This is an adaptive feature that quantifies how much water can be used for

irrigation from the source, while noting the importance of planning, review and

monitoring of water and soil conditions, as well as the state of water facilities. There

133 Al-Fati 2008, p. 153.

49

are no further guidelines on this, and no available information on how this is being

managed.

Consultation processes in place refer to the discussion on the Basin Councils, which

offer advisory and consultative role to the water basin organizations established and

maintained by CWR. It is evident that the consultations platform is available, but no

information is given to what extent it offers a dialogue to stakeholders and whether

they are empowered in the decision-making. This once again demonstrates

maladaptive features of the Water Code.

4.1.4. Processes

The processes need to reflect an iterative process with feedback loops, accountability

mechanism, procedural flexibility and safeguards, and enforcement and compliance

mechanisms. This is demonstrated by review periods, overall monitoring of multiple

indicators, disclosure and contribution to decision-making for all actors, access to

courts, coordination, enforcement procedures and implementation paths, non-

compliance processes and binding obligations.

Accountability mechanism in place in the Water and Land codes refer to related laws

on, for example, monitoring soil quality, water facility uses and maintenance, water

quantity in rivers and other bodies. These elaborate specifically on how monitoring

should occur and what environmental conditions and facilities should be in place.

Moreover, the Water Code establishes CWR and local authorities responsible for

conducting state monitoring of water bodies (Article 60). The state is responsible for

all monitoring and processing of information based on various scientific indicators of

water bodies and their condition. Monitoring occurs together with relevant authorities

to provide more insight on the substance of the legislation, such as together with

water authorities for mineral resources use and study, and while considering

information on use of water resources provided by water users and scientific bodies

(Articles 58 and 59). The state also is responsible for submitting timely

recommendation for prevention of harmful effects. No details are provided on the

methodologies used or how often these recommendations are submitted and how they

are taken into account. As stated earlier, the Land Code encourages review and

50

monitoring of the water used for irrigation in Article 97, but no further elaboration is

provided. No particular monitoring standards are established and only yearly

timeframes are mentioned for this to occur, lead by CWR (CWR based on MOA’s

Decree No. 19-5/519 Article 14).

On disclosure and participation in decision-making for all actors, it is not clear that

they are able to publicly access the information on Basin Council meetings. It can be

assumed that when these meetings are planned, relevant stakeholders are identified by

the water basin organizations and invited to participate. Nevertheless, the fact that no

information is available on how these stakeholders are involved in decision-making,

despite a set system in place, emphasizes a point where the legislation can be

improved. In terms of information availability, the Water Code states that authorized

bodies may create information system for water resource users, for which water users

provide necessary information (Article 61). In practice this information system is not

available anywhere, although government authorities are required to provide

information when requested (Article 9). As indicated earlier, information on water use

is hard to come by; all of the information is collected by the state from CWR and

local authorities yet no information is available on the ministry website of any other

database. In most cases, a user must request official access using a special application

form and even then the request must comply with governmental interests in order for

it to receive approval.134 This points towards maladptivity of the law due to lack of

binding requirements for availability of information to water users.

Regarding water disputes and public access to justice, Article 137 of the Water Code

states that these disputes resulting from between water users relating to water bodies

and facilities. These are to be resolved using negotiations or in courts. As a result, the

water users are encourages to first attempt use of negotiation options with the support

of government authorities, but judicial intervention is a viable option as well. Having

access to justice available to water users is encouraging, yet in the case where water

users are damaging state owned water bodies and facilities, water basin organizations

submit materials on abuse of the legislation to the law enforcement agencies and the

courts for compliance and claims for damages. Therefore, water basin organizations

134 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017b.

51

are empowered to provide legal information of non-compliance. Water users are

entitled to access justice and courts, while water basin authorities in line with CWR

are charged with monitoring and filing of non-compliance to the legislation. This

process affirms a feature of an adaptive legislation in the Water Code.

Interestingly, MOA offers information based on inspections as a result of non-

compliance to the standards based on information provided by basin organisations and

local authorities, primarily referring to the amount of fines issued with no

specification on the kind of non-compliance detected.135 This information is limited,

but it is in direct compliance to CWR based on MOA’s Decree No. 19-5/519 Article

14, where CWR is responsible for provided information for water users.

Unfortunately, this is one of the few available to the public reports on water

management and use. Evidently, not all necessary provisions are stated in a binding

manner, which creates problems with compliance and enforcement. Most of the more

flexible provisions state general suggestions on how to manage water use in irrigation,

and this as a result gives discretion for both government authorities and water users on

how they use water resources.

Available enforcement and coordination procedures are often linked to other laws. For

example, Article 55 of the Water Code states required standards of maintenance and

condition for water facilities, including irrigation facilities based on the standards

outlined in Environmental Code, Land Code and others in reference to the

environmental standards and rules of protection (such as sanitary-epidemiological

standards, rational use of water resources) and considering environmental

consequences. Moreover, more specific provisions in the Water Code refer to non-

compliance procedures in the form of a ban and a fine in case of non-compliance for

special water use, which can be applied to irrigation practices as well (Article 75).

Overall, non-compliance procedures follow state administrative regulation by

initiating law enforcement bodies (Article 51). Overall, processes in place in the

irrigation laws are somewhat adaptive but lack considerable enforcement, and require

further development. Primary issues derive from not entirely clear processes that refer

to monitoring, disclosure of information and lack of binding requirements.

135 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017c.

52

4.2 Strengths and gaps

4.2.1 Identified strengths

Overall, regulation attributed to irrigation is adaptive in relevance to few aspects of

the law. The Water Code demonstrates substantive elements that are positive and

enable further opportunities for adaptvitiy using, for instance, water basin approach

and strengthening this concept by outlining major principles into action with, for

example, the existence of basin management organizations. Substantively, the law is

very general and broad, with few procedural and monitoring standards in place.

Another positive attribute is the availability and enabling of access to justice for water

users. The Water Code establishes water basin organizations as hubs for monitoring

and information storage and analysis, whereas water users are able report and engage

with the authorities in the case of non-compliance. The law encourages negotiations

first, but court systems are explicitly mentioned, and water users have this option.

Another positive adaptive element of irrigation law is its presence and significance in

the national short-term programs that are reviewed every 5 years, such as the

Presidential Decree on “Approval of governmental program on development of agro-

industrial complex of the Republic of Kazakhstan for 2017-2021” from 2017 No. 420,

which not only provides a substantive analysis of the current state of irrigation

practices and water uses, but also offers short term target and indicators for MOA to

follow and develop better management practices. These types of programs highlight

lessons learned from previous practices and encourage the responsible bodies with a

step-by-step process for improvement. Importantly, these are policy programs and are

not binding, so the level of incentive is significantly lower. Nevertheless, such

programs offer coherence and direction for authorities and water users.

In terms of compliance, enforcement is operating on basis of fines and permit

removals. Water users must apply for permits and licenses in order to use water for

irrigation purpose, be it private individuals or organizations, and the government can

even lease irrigation facilities to them. Yet with yearly inspections undertaken by

water basin organizations under the mandate of CWR, water use and irrigation

facilities are checked against established standards. These binding obligations for the

users to maintain water use and facility maintenance standards against yearly

53

requirements demonstrate a flexible system of water entitlements, where water use

rights can be also be transferred and requested. Moreover, each year water users must

apply for the permit to use water for irrigation with a specific quota, for which the

CWR will assess the extent of available for distribution water. These processes are

supported by the fact that CWR is meant to continuously monitor and update

available scientific information.

Another adaptive element found in the irrigation law is the substantive coherence

between primary laws on irrigation in the context of short-term and long-term goals.

This refers to the notions of sustainability, IWRM and basin environmental protection

and management standards across available legislation on irrigation. This sense of

coherence is partially spread to some policy instruments. Notably, the only exception

is the Ministerial Decree on the Rules of subsidizing services for water provision for

agricultural needs No. 6-3/597 outline basic subsidy rules. The Land Code is

complimentary to the Water Code in its irrigation provisions, and stands as the most

complimentary major legislation in Kazakhstan. It offers a perspective from soil and

land ownership, and consciously refers to the Water Code on water management

concerns.

The Water Code states the importance of scientific information to inform the

legislation. Although, nothing further is elaborated on that, the Article 59 states that

an water authorities have to provide information to individuals and legal entities when

requested. This suggests that the authorities are required to provide information when

requested, yet this is not publically available for scrutiny. In essence the fact that the

law allows information access through a certain request procedure is a positive

direction towards transparency in water management. The state is responsible for all

monitoring and processing of information based on various scientific indicators of

water bodies and their condition, as well as for submitting timely recommendation for

prevention of harmful effects (Article 60). This highlights a notion that a notion of an

iterative process is partially present, but no specific methodology or other details are

available.

Consultation processes are also lingering in the legislation, where relevant

stakeholders and actors are encouraged to participate in advisory platforms for water

54

basin organizations. These Basin Councils are established as a result of basin

agreement developed by CWR, which offer some platform for participation in

decision-making. There are adaptive elements and a lot of potential overall, yet some

limitations apply that poses significant barriers towards legislation’s adaptive

capacity.

4.2.2 Capacity and limitations

Irrigation laws in Kazakhstan maintain maladaptive features regardless of how much

adaptive potential it has. Importantly, transparency remains one of the bigger setbacks

in the criteria of adaptivity. Information on water use and management is not readily

available, and even if the law allows information analysis systems they are not public.

Information from the data bases that MOA and CWR use for analysis and monitoring

is very selected and limited. This demonstrates the lack of binding obligations

established by the law to allow its water users understand water use and management,

as well as any scientific data collected from yearly monitoring and inspections results.

One of the few ways to access this information is by submitting special forms, which

would first need to be clarified that the question in mind refers to the relevant water

user at hand.136 Despite the mandate of CWR to offer information to the public on

water statistics and, there is nothing available. Therefore, transparency is a

fundamental barrier for adaptivity in the law, as there is a disconnection between

water users and authorities, as well as between authorities in different water basins.

Another barrier to adaptivity in the face of climate change is the centralized nature of

the legislation. The state owns all water bodies and has the sole decision-making

responsibility on how to manage it. In the case of irrigation, the state decides how

much water is permittable for use in irrigation and where that water is sourced.

Moreover, the established Basin Councils play an advisory role that does not

guarantee that their views are represented in the decision-making. No information is

available on how this decision-making involves recommendations from participating

stakeholders, as none of these documents are made public. As a result, even between

involved stakeholders they could be uninformed on the extent of water use and

management that is applicable to them or the history and science behind it, which

136 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017b.

55

makes it that much harder to be able to participate with a stronger voice in a limited

platform available. The centralized nature of the laws puts a lot of responsibility on

the state to manage very complex matters, and as has been established by research, the

state does not have enough manpower or streamlined investment to guarantee

adaptive and smart decision-making in water management137. The law also maintains

that CWR and local authorities must operate under provided budget, and practical

examples demonstrate that budget is not high enough to maintain irrigation

systems138. As a result, the issue of implementation and compliance with the law also

remains to be a maladaptive feature as it is evident that there is not enough capacity

for the state to carry this scale of enforcement.

Regarding standards for water quantity available and the state of irrigation facilities,

the law regulates that these should be maintained up to established standard. The law

itself provisions this, but does not enforce it fully as at the moment most of irrigation

systems in Kazakhstan are not looked after. Water leakage is common, and irrigation

facilities are in bad conditions139. The law entrusts local authorizes to maintain these

facilities, or private users to do so, but in practice these are very expensive to

maintain. Importantly, there is a link with the subsidies for irrigation use, as profits

used for this are directed towards maintenance of irrigation facilities. Considering the

poor sate of these facilities, it makes sense that there is no capacity for the state to

manage that. Broadly speaking, enforcement and safeguards also remain as the

biggest barrier for adaptivity of irrigation laws. It is not enough that the law states

certain standards and principles. For the whole system to maintain resilience towards

climate change, the enforcement procedures need to be stated more clearly, while

compliance regulated more thoroughly.

Economic instruments put in place are evidently not coherent with the substantive

targets of the irrigation laws. At the moment, water users lack economic incentives to

preserve water because water used for irrigation is heavily subsidized and is

extremely cheap. The intention of the Water Code is to maintain water quantity as a

healthy level, and increase efficiency of water uses, but in practice this notion is not

137 Stucki - Sojamo 2012, p. 399–418. 138 Ministry of Agriculture of the Republic of Kazakhstan 2017, p. 13 139 Ibid.

56

enforced by complimentary economic policies. An adaptive system would require

supporting policies for it to operate efficiently, and in this case there is much to be

improved. Coherence between relevant laws on irrigation is only partially applicable.

Crucially, it is important to assess whether adaptive law can function in Kazakhstan,

particularly considering existing high corruption scores. 140 Kazakhstan’s current

corruption rank based on Transparency International is 131, which has decreased from

145 in 2008141, highlighting a slow improvement towards a more transparent system.

Nevertheless, rank 131 is a high corruption rank and this risk heavily sabotages

adaptivity potential of irrigation laws in Kazakhstan. The problems with adaptive law

require certain conditions in place for it to be effective and useful. As was highlighted

in earlier chapters, adaptive law requires a functioning transparent legal system to

have an effect and this can be a challenge. Without transparency in place, the law

cannot easily adapt to the changing environment as a result of climate change,

because it needs to enable free information flow between decision-makers, which

include key stakeholders and the public. This is to guarantee that the decisions are

assessed based on all information available and that these decisions are the best

possible based on the available information. Without transparency, certain actors are

not able to benefit from the decisions made, and certain issues are not brought to light

to inform the law.

Kazakhstan has slowly climbed down towards less corrupt ranking so far, and this is

partially a result of strong governmental intent to reduce corruption in the country.

The Law on Counteraction of Corruption No. 410-V from 2015 enforces anti-

corruption standards and limitations, outlines restrictive actions applicable for

government authorities, establishes anti-corruption agencies for monitoring, and states

a variety of compliance mechanisms that vary from fines, to property confiscation, to

prison sentences (Articles 7, 10, 19-24, 27). This is binding upon all and remains an

important topic of discussion in the government. Moreover, internal corruption

monitoring agencies, such as the Institute of Public Policy, have attempted to develop

and apply various methodologies based on national context to estimate the level of

140 Transparency International 2017. 141 Transparency International 2008.

57

corruption across sectors and over time in Kazakhstan.142 A different set of criteria for

assessing corruption levels is developed, which demonstrate the commitment for

reducing and studying corruption.143 All of this demonstrates a significant political

intent to address this issue. The corruption regulation has reflected itself in the slow

improvement of the country’s transparency ranking. This suggests a potential for

adaptive law to be effective in Kazakhstan’s water resources management regulation

if the state’s initiative continues to bear positive results. Nevertheless, the state

remains strictly centralized, which can counteract corruption counteraction efforts.

It’s important to consider whether adaptive law is actually necessary and useful. Craig

and Ruhl have identified where adaptive law is not needed, particularly where the

agency’s final authority towards a decision is essential.144 In the case of Kazakhstan,

this is the case, and it can be argued that adaptive law is not needed and will not work.

On the other hand, Craig and Ruhl have also identified that adaptive law is not needed

where long-term stability in decisions is paramount, and where implemented

decisions cannot be easily changed. This is not the case in Kazakhstan, as the Water

Code has emphasized the importance of substantive goals, rather than longevity of

decisions, and the importance of the available scientific information for the decisions

made. As a result, adaptive law has the potential to be developed in the legal context

of Kazakhstan over management of water resources in irrigation, but the centralized

nature of the law and extreme lack of transparency, leading to high corruption risks,

pose as important challenges for the law to improve and be able to adapt to climate

change impacts. In irrigation law, these aspects are extremely relevant, and highlight

the need for the state to work better.

142 Pelizzo – Baris – Janenova 2017, p 77. 143 Pelizzo – Baris – Janenova 2017, p 106. 144 Craig - Ruhl 2014, p. 13.

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5 CONCLUSIONS AND RECOMMENDATIONS

Kazakhstan’s irrigation law faces challenges with climate change impacts on available

water resources for agricultural use. Kazakhstan’s agricultural sector is emerging as

the policy focus for the country’s economic development, and the country needs to

foresee already existing impacts of climate change on irrigation practices. Available

water is already decreasing as a result of unsustainable and wasteful use, extreme

weather in events, such as droughts, and overall decrease of available water resources.

The theory of adaptive law can help irrigation laws in Kazakhstan to improve and

adjust to the changing environments using an iterative process towards decision-

making that allows for continuous adaptive changes in the legal design. The

developed adaptivity criteria of assessment focuses on four features of the law: goals,

structure, methods and processes. Substantively, Kazakhstan goals demonstrate

positive elements that enable adaptivity in the law, such as the embracing of the water

basin approach, IWRM and sustainability. These also highlight overall coherence in

terms of substantive goals with other legislative instruments, such as the Land Code.

Moreover, the presence of national 5-year strategic development programs that are

reviewed after 5 years demonstrate the intention of the state to review water

management practices, water conditions and standards in place, and adjust how they

can be improved. These policy documents one again highlight a general coherence

and intention of the laws to uphold the overall substantive goals of water resource

management in irrigation.

Moreover, the Water Code outlines some enforcement mechanisms for water users

such as permits and fines in irrigation, as well as mandates yearly inspections to

monitor the current state of water use and irrigation facilities by the water

management organizations under CWR. This is also supported by the recognition and

acknowledgment of the Water Code towards importance of scientific information to

inform the legislation. Finally, water resources management in irrigation is also

informed by the Basin Councils that offer advisory services to the basin management

organizations under CWR, which represent a variety of water users. As a result, there

is some form of an iterative process present in the irrigation law, which can foresee

major challenges in water availability and use, which should trigger the law to

respond.

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Nevertheless, the irrigation law in Kazakhstan faces significant challenges in its

design when it comes to major aspects of adaptive law. An important challenge is the

lack of transparency and available information to the public and between relevant

authorities. This is problematic for adaptive law, as it relies on transparency and

constant review and scrutiny processes by relevant actors in the water resource

management. The transparency informs the decisions of stakeholders, and enables a

learning process through available scientific information. Furthermore, a fundamental

challenge arising from the lack of transparency is the risk of corruption. Kazakhstan

remains one of the higher scoring countries in the world when it comes to corruption

levels, and this can significantly undermine the benefits of an adaptive law system in

place. This also questions the need for adaptive law in irrigation law in Kazakhstan

due to the heavy negative implications of corruption on the adaptive design of the

legal system. This can be improved by incorporating anti-corruption provisions more

closely to the Water Code, and strengthening governmental capacity to maintain an

adaptive system in place once it has been put forward.

Another challenge is the centralized nature of the Water Code, which puts a lot of

responsibility on managing water resources to the state and does not involve

stakeholders and other relevant actors in water use to be part of decision-making. The

Basin Council provide a platform for these stakeholders to participate, but linking

back to the lack of transparency, no information is available on who is participating,

how the recommendations from the Basin Councils have been incorporated in the

decision-making of CWR, and what decisions have been made. All of this highlights

that some crucial information from the water users is missing from the reports from

CWR, which could inform and improve water management in irrigation. Involving

more stakeholders could also help the state finance improvement of irrigations

systems, including irrigation facilities, as it has been found that they are in poor

condition and the state does not have enough manpower, capacity or budget to

improve them at this stage. This is also a problem of enforcement, as the state does

not have the capacity to enforce the provisions of the law to maintain irrigation

systems and carry out this scale of enforcement.

Moreover, coherence of the irrigation goals with economic instruments remains a

challenge. Overall, as has been stated earlier, substantive goals are more or less

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coherent with other relevant laws and policy instruments, but specifically the lack of

economic incentives to preserve and maintain sustainable water use is missing. This is

the result of heavily subsidized available water for irrigation, which needs further

improvement from the state’s side.

The major weakness of adaptive law is the requirement for it to have a specific system

in place for it to bear any benefit, and this can be done my improving the current

design. It has been established that Kazakhstan’s irrigation law is largely maladaptive,

but it still contains some potential for adaptivity in its regulatory design. These

involve, firstly, to improve enforcement measures of the current irrigation’s

legislative provisions, such as direct capacity improvement over current basin

management organizations of CWR to monitor and support irrigation systems and

water uses. This involves strengthening monitoring standards and conducting more

frequent reviews and evaluation of current water use in irrigation, as well as harsher

penalties and overall transparency for the public to understand consequences of

wasteful water use.

Secondly, to involve relevant stakeholders in the decision-making regarding irrigation

management by the water users during Basin Councils, as well as empowering Basin

Councils to not only provide advisory services, but also making sure that all relevant

stakeholders are considered and heard, and their decisions are more strongly

incorporated with the decision-making of CWR. This would result in more

collaborative governance of water resources, which would help address uncertainty

and interdependency of irrigation management. Water users could freely participate in

decision-making, and be able to reflect their experiences.

Thirdly, adjust economic instruments to reflect the Water Code’s goals and irrigation

targets in order to incentivize sustainable use of water in irrigation practices and avoid

wasteful water uses. This can be taken further by enabling economic instruments to

adjust to different regions of water use in agriculture in order to reflect the conditions

in place. Overall, this would only benefit current system by reducing water leakage

and incorporating other legal and policy instruments.

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Fourthly, improve current system of available information by binding the authorities

to release all relevant information on water use in irrigation using water management

organizations or CWR official website as a platform for transparency between

relevant authorities and water users. This would improve decision-making for relevant

stakeholders, and bring forward issues that have not been addressed before. The

enabled dialogue can serve as a safeguard for authorities’ decision-making, assuming

relevant stakeholders are more actively involved in overall management of water

resources in each water basin.

Finally, with regards to corruption risk there is a need to strengthen the link to

irrigation laws and develop a better regulatory design in the Water Code to respond

better to anti-corruption provisions, such as involving more monitoring, improving

access to justice system and complaint system. This is to enable a safe environment

for water users and authorities to practice adaptive water resources management.

Moreover, the state is already on its way towards addressing current issues of

corruption, and this needs to be further encouraged by enabling better corruption

counteraction methods and overall adjusting of the legal system towards it. Enforced

transparency in the management of water resources can assist in addressing this risk.

Overall, for adaptive law to be effective there needs to be a significant capacity in

place and willingness of the state and relevant authorities to maintain this system. At

the moment, the state does not streamline enough budget and overall attention

towards improving water resources management in agriculture. This is primarily done

by non-binding 5-year programs are yet to be effective. If adaptive law is indeed the

method to manage irrigation law in Kazakhstan, MOA, CWR, water basin

organizations and Basin Council need to be strengthened institutionally. They would

require not only continued support towards activities on monitoring, evaluation,

research and implementation, but also towards maintaining overall purpose and focus

on the fundamental elements of adaptive law. These can dramatically improve current

irrigation management, preparing the legal and institutional set up for increased

climate change impacts. Although, these fundamental changes in systematizing

irrigation law are difficult to both maintain and achieve, it can be possible if the state

using its centralized nature can put this in place.

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This analysis has presented basic maladaptive elements of the irrigation law, and has

offered general recommendations on how to improve. In practice, elements of

adaptive law can improve certain processes in managing irrigation law, but overall it

is unlikely that all of the assessed features of the law can be easily transformed. This

would require commitment and capacity from the state. It remains to be seen how

current legal system on water management in irrigation will develop with increasing

presence of climate change impacts.