Introduction

1This paper focuses on emergency regulations in drought periods. My approach is mainly legal, including constitutional, administrative, environmental and water law, but framed in the theoretical perspective of the state of exception, necessity or emergency. These concepts have been used to frame drought emergency regulations in each country’s legal framework. My proposal is to reconsider classic and current water law mechanisms used to deal with scarcity and drought from the key concepts of emergency and the state of exception [Agamben, 2005; Schmitt, 2009; Rrapi, 2017].

2I will use a comparative approach. Using the cases of Argentina, California (USA) and Chile, I will show that, despite drought being a normal weather feature of these arid or semi-arid regions, it has been repeatedly classified as an emergency in order to support exceptions to the legal order. One reason for using a comparative approach for this research is to avoid local and superficial explanations; another reason is to prevent the argument of uniqueness. These well-known cases in water management field are useful to exemplify to what extent this is not only a local nor regional issue. In spite of the significant differences between countries, legal cultures and contexts, the following cases all share same and main problems. Interestingly, the legal response in all these countries has been very similar regarding water law and policy in the face of a difficult dilemma [Neuman, 2003; Urquijo et al, 2015; Botterill & Hayes, 2012; Brufao Curiel, 2012].

3My analysis will focus on two main legal corpus of the case studies: the water code drought legal framework and the Emergency Regulations during droughts periods. Generally speaking, Emergency Regulations are usually enacted by political authorities (president, or governor), by the water authority, but also by the congress or the legislative assembly and justified by the fact of water scarcity or drought. My aim is not only to critically analyze these regulations, but to observe what occurs when the emergency situation becomes more frequent or tends to become permanent. Therefore, the “exceptional rules” to face the “crisis” become the principle and no longer the exception for water management.

4Are the current emergency regulations the best way for water governance considering that severe drought is not a natural disaster but a regular feature of semiarid regions? Do they provide the right balance between legal certainty and flexibility? What kind of link exists between the non-enforcement or ineffectiveness of regular water law and the production of drought? Considering that drought might become more frequent and scarcity more severe: what are the risks in transforming “emergency regulation” into permanent regulation progressively replacing water law? Does it constitute a permanent “state of emergency or exception”? In which paradigm are emergency regulation based? What should water law keep or reject from emergency regulations? Has the exception become the rule?

5Consequently, I first discuss the concepts of drought and scarcity, describing the failure and ineffectiveness of classic water law mechanisms to deal with them nowadays (1). Secondly, I critically analyze both, the legal framework (2) and the scope of Emergency Regulations in drought periods (3). Finally, I observe the trend of emergency regulations becoming permanent while considering the risk of creating a state of exception (4), which leads me to draw some conclusions (5).

Drought, scarcity and water law. The ineffectiveness of classic water law legal mechanisms

6Drought has been mostly considered as a natural disaster by the media, politicians and the law, despite the fact that it usually follows certain patterns, according to each country’s climate, notably in arid or semi-arid regions. Drought has been generally defined as a temporary decrease in the average water availability due, for example, to lower rainfall. But defining what is normal, and what is not, has always been a difficult and challenging issue, even for science.

7On the contrary, water scarcity occurs where there are insufficient water resources to satisfy long-term average requirements. It refers to long-term water imbalances, combining low water availability with a level of water demand exceeding the natural system’s supply capacity.1 Water scarcity refers to a permanent imbalance between available water resources and demands, while drought can be defined as a natural temporary negative deviation from the normal precipitation amount for a significant duration and extension, which leads to a temporary water shortage in a supply system [Rossi & Cancelliere, 2013; Van Loon & Van Lanen, 2013].

8In short, drought is related to water availability and nature, and scarcity to demand and social needs. Both droughts and scarcity have always existed in arid and semi-arid regions and both are getting worse but for quite different reasons. For instance, scarcity is getting worse due to an unlimited, increasing demand for all kinds of uses. Climate change is a different phenomenon that influences temperature and precipitation patterns and might entail more frequent droughts.

9In the 21^st century the three regions under study have already been affected by severe drought conditions and have subsequently declared states of emergency (Argentina (Mendoza), 2010-2020, Chile 2011-2018 and California 2012-2015). The 2012-2015 Californian drought is said to be the worst ever recorded in a hundred and twenty years, and some studies have even stated that it has been the most severe in at least 1.200 years.2

10Managing water in arid and semi-arid regions was always managing scarcity and drought. The 21^st century brings no difference. But natural, normal and even more frequent droughts are not the only cause of scarcity, since the latter is mainly related to extraordinarily increasing human demands.

11In media, discourses, regulations, politics and policies, drought is often confused with, and increasingly replacing, scarcity. In other words, as it has been put before, we face “a man-made drought”. Scarcity has also been conceived as intentionally produced by society itself or by the government [Foucault, 2006; Harvey, 2007; Swyngedouw, 2004; Mehta, 2005; Padilla Calderón, 2012]. Recent experiences show that defining drought and deciding of a state of emergency already is, and is becoming increasingly more of, a highly political issue rather than a scientific one [Bakker, 2000; Kaika, 2003].3 Thus I argue the necessity to deeply question the concepts of drought and scarcity, due to their importance for managing water and supporting the declaration of the state of emergency. Drought is therefore the key scientific and legal concept for justifying, providing legal support and legitimizing both the declarations of the state of emergency and the emergency regulations themselves. If there is no drought, there is no legal support for emergency.

12In arid and semi-arid regions, water law stems from scarcity — not drought. They are mainly intended to regulate scarce water. Scarcity lies at the epistemological foundation of economic science. It is also the basic assumption of water law. So far, so good.

13Classic legal mechanisms to cope with water scarcity were instituted more than a century ago, when most of water rights were appropriated or granted. However, nowadays, these mechanisms have become obsolete and ineffective.

14For example, and depending on the country, water rights’ granting means: priority orders (time request/type of uses); no harm clause; prior appropriation or riparian rights, water rights forfeiture or expropriation. Related to different water rights’ categories there are also criteria for water deliveries or water diversion, usually based on water rights’ seniority. What is interesting here is to observe what comes up when rules that have been enacted a century ago must be enforced in a completely different context. In that sense, drought acts as a stress test to water law that has already started to change in current drought-emergency contexts [Neuman, 2003].

15When trying to enforce legal water allocation criteria in drought conditions — based almost exclusively on water rights seniority (prior in tempore, prior in ius) — water authority realizes that it challenges other fundamental legal principles such as efficiency, equity, hierarchy uses, reasonable public trust or environmental requirements. As a consequence, its application becomes more complex. To rebalance all these principles is a major task that cannot be easily left to the discretion of the water authority in the rush of a drought. This is certainly a very controversial example, but at the same time the most paradigmatic one, since, at the end of the day, it decides who gets water and who does not.4 For instance, the Californian Supreme Court made it clear that a use that at one time had been considered beneficial can become wasteful under different circumstances. In 1990, citing a case from 55 years earlier, the Court wrote:

“What is a beneficial use, of course, depends upon the facts and circumstances of each case. What may be a reasonable beneficial use, where water is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, because of changed conditions, become a waste of water at a later time”.5

16Nevertheless, more research is needed to know if and how these mechanisms work, and not only in theory, but mainly in practice in each of these countries. We will come back to that when analyzing emergency regulations in more detail.

17Water law ineffectiveness has several causes but it is quite clear that, while reforming water law in arid or semi-arid regions was difficult during 20^th century, the 21^st century opened up new options. Water law, and the water rights granted under its principle hundreds of years ago, are so deeply embedded in local society that they cannot be easily changed. Mendoza (Argentina) succeeded in reforming the provincial Constitution, the Civil Code, and most of its legislation, except for the 1884 Water Code. The Chilean Water Code was enacted in 1981, during the dictatorship. It has not been significantly reformed since then, despite many attempts and strong political pressure. No significant changes occurred in the Spanish Water Code of 1866-1879 until 1985, when the current Water Code was passed. Interestingly, major recent California Water Code reforms have been triggered by drought periods (e.g.1991-1992, 2012-2015), a phenomenon that can also be observed in other countries. All of them are good examples of how difficult it can be to change water law, but at the same time how recent droughts are triggering water law reforms.

The legal framework for emergency regulations in drought periods

18Water law has always regulated water scarcity, but emergency is quite a new topic. California, for example, introduced section 1058.5 “Emergency Regulations” for the first time in the Water Code during the 1991-1992 drought. Some reforms to this section were also made in 2014, during the 2012-2015 drought.6

19Chile’s Congress passed a moderate reform to the 1981 Water Code in 2005, which included article 314 about “Extraordinary scarcity”. The analogous ruling for Spanish water law is article 58 TRLA, referring to “Exceptional Situations” [Real Decreto Legislativo 1/2001, de 20 de julio, TRLA].

20The crucial inclusion of a legal framework for emergency regulations in California’s Water Code is, in many senses, a turning point. First, it introduces to water law the major dichotomy between normal/abnormal, or ordinary/extraordinary situations that implies at least two main consequences for water law structure. Second, it renders necessary a definition of normal in terms of scarcity and drought, and it’s mostly a political definition.7 And third, it also requires that two different and separated water laws be defined. One law rules normal periods, that have proved to be less and less effective, and a second set of laws rule abnormal, emergency or exceptional periods, that I will address next. From a theoretical viewpoint, the emergency legal framework brings in one major and long debate. Should the state of exception be considered as existing within the juridical order’s sphere or should it be considered as something external, that is, an essentially political or, in any case, an extra-juridical phenomenon? After revisiting this debate, Agamben concludes:

“The simple topographical opposition (inside/outside) implicit in these theories seems insufficient to account for the phenomenon that it should explain. If the state of exception characteristic property lies in the suspension (total or partial) of the juridical order, how can such a suspension still be contained within it? How can an anomie be inscribed in the juridical order? And if the state of exception is instead only a de facto situation, and is as such unrelated or contrary to law, how is it possible for the order to contain a gap precisely when the decisive situation is concerned? And what is the meaning of this gap? In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other” [Agamben, 2005, p. 26].

21Nevertheless, the aim of this paper is not to revisit such a complex theoretical debate, but to point out instead the many existing risks behind it. The legality or the legitimacy of both, the emergency legal framework and the emergency regulations themselves, are not to be taken for granted.

22Water codes have interestingly came up or been modified in the last 25 years during drought periods, trying to regulate, to fit into the law framework the increasing phenomena of emergency regulations in water management.

The scope of emergency regulations of drought

23Countries normally react to drought, as to a disaster or catastrophe, by enacting emergency regulations with or without a legal or constitutional framework such as the described before. Broadly speaking, emergency regulations consist in “exceptional rules to manage water crisis”, different kinds of norms, like Congress or Legislature acts, presidential decrees, executive orders, administrative regulations, mostly seeking to provide additional water supply and financial relief through:

1. Suspending the application of the regular water law.

2. Increasing state discretionary powers concerning decision-making and regulations (e.g. water allocation criteria).8

3. Including faster procedures to grant permits, impose sanctions, facilitate water transfers or eliminate public procedures (e.g. public tender).

4. Lowering environmental and water quality parameters (e.g. April 2014 Proclamation Suspended Environmental Review required by the California Environmental Quality Act).

5. Providing extraordinary public funding relief and subsidies.9

24Emergency regulations can adopt many forms (e.g. the emergency regulations taken by State Board of Water Resources under Water Code section 1058.5.). They are strongly administrative and mutable, volatile, and because of that often unknown. Unlike regular law, enacted by legislative bodies, these rules are unknown and unpredictable because most of them will be enforced —in theory— for a short time, based on the discretionary powers normally granted to the authority of the so-called state of emergency (e.g. exceptional curtailments decided by the State Board of Water Resources).

25Far from being just limited to the drought, emergency regulations frequently allocate a huge amount of public funding, introduce major reforms, change administrative law, reshape government structure and adopt broad public policies that should be adopted by regular means and procedures, under normal public scrutiny and control.

26Summarizing, both suspending the application of regular law and increasing discretionary powers are the two main features that characterize or end up merging in the single juridical phenomenon of the state of exception [Agamben, 2005, p. 4-5].

The state of exception: when emergency regulations become permanent

27As described, emergency regulations are for many reasons particularly problematic for legal theory and water management. Emergency regulations are legally supported by drought and usually linked to concepts such as: state of necessity, crisis, urgency, catastrophe, etc. They are therefore inextricably attached to the abnormal, the extraordinary, the exceptional in opposition to normal, ordinary or regular times. Emergency regulations are supposed to be temporary and exceptional.

28If there is no drought, there is no legal support for emergency regulations. If emergencies are neither temporary nor exceptional, there is a risk that the law might become itself a state of exception and that emergency mechanisms become permanent ones. Explicitly or implicitly, in other words, the exception becomes the rule.

29Drought, often confused but different from scarcity, as it was established before, is being used more and more for justifying or supporting emergency regulations or mechanisms. In doing so, it is driving water law and policy to a kind of state of exception.10

30Justifications for the state of exception have a long history linked to the state of emergency by war, civil disorder, etc. [Agamben, 2005]. Later, causes will be expanded to economic crises that may also justify suspending the constitution or not applying the law temporarily. Natural disaster has also been used as a support for emergency declarations and, related to them, droughts. The hypothesis of declaring the environmental state of urgency because of climate change has been seriously considered even in France within the 1955 Act [Rrapi, 2017, p. 181]. Peru provides also an example regarding granting permits in overdrafted aquifers [Guevara Gil, 2017].

31Currently, as democracy and government become more and more sophisticated in every field, the state of exception spreads out to all branches of government, acquiring different forms, concepts and discourses. In this case, drought.

32There are different ways and mechanisms for Emergency Regulations to exist and become permanent, sometimes explicit, sometimes implicit. The most evident is the explicit extension of the emergency regulations or the state of emergency, but also their frequency.

33For example, Mendoza (Argentina) has extended the state of emergency because of drought declared by governor decree from 2010 to 2018, nearly ten years. Interestingly, the Niño Southern Oscillation brought exceptional snow one of those years. Arguing that a wet year is not enough to recover from the severe past drought, the state of emergency was extended for another year.

34In Chile, the president has been continually declaring zones, basins, or counties under extraordinary drought since 2010, despite the Water Code (art. 314) establishing a maximum of six months. Similarly, Californian Water Code states a maximum of 270 days for emergency regulations. What happens if drought continues? The governor extends the state of emergency.11 The state of exception can nevertheless adopt many forms, less explicit than declaring a state of emergency, but even more powerful. Making decisions during periods of drought which have effects beyond the drought is a good example. Infrastructures, notably big infrastructures, are the backbone of the water system. For decades, managing water was considered synonymous with controlling dams, canals, etc. Water control policies and big infrastructures were widely used in the last century, but have become controversial, contested and faced resistance during recent years for different reasons, including, among others, environmental public funding, and cost-benefit concerns. Many of these large infrastructures, such as dams, reservoirs and desalination plants, have been approved in California or Spain as emergency measures, with extraordinary funding, fast track procedures and no discussion on the urgency of provide funding for relief drought effects. But interestingly, the construction of such infrastructures takes years, often many years. Most of them will not be useful for drought relief, but will be operating for the next 50 years, as will the financial consequences of those decisions over taxpayers.

35This fast-track approval of big water works is a good example in most cases. Big dams, desalination plants or water transfers that have been discussed, resisted and highly controversial for years or even decades get approved through emergency regulation during drought. Under the urgency that drought imposes, extraordinary financial decisions are taken to fund those big infrastructures, skipping regular, participatory and democratic procedures [Brufao Curiel, 2012]. Interestingly, these kinds of large-scale constructions take years to be built, and are not available until after the period of drought has ended. In short, the decision is taken during exceptional periods, but they are really being built for the future, rather than for drought relief that they cannot actually provide.

36This example raises many questions in light of the state of exception approach. Is the emergency the rationale to revive an exhausted paradigm of water control? Is drought stress the moment to make such major decisions concerning water law and policy? Why take such decisions if they will not provide relief for the ongoing drought? Is there no time to talk about cost, beneficiaries and impact? Coming back to the first question: is it really a drought that we should have expected?

37It is pretty clear that politicians might be tempted to use emergency mechanisms for governing not only drought but the entire existing water crisis.12 Although outside the Americas Australia is a clear example showing to what extent the emergency paradigm is rooted in both users and politicians. This country, largely affected by droughts is well known for adopting a National Drought Policy in 1992. After a great drought, the country radically changed drought policy moving from a crisis, disaster or reactive approach to a risk management approach. This was a great step in considering drought as a normal feature of the climate rather than a catastrophe or an exceptional event. Despite this big effort to change the policy paradigm, both water users and politicians keep focusing on declaring Exceptional Circumstances, in making the case or drawing maps for getting financial relief, instead of adapting their businesses and crops and preparing for the next drought [Botterill & Hayes, 2012, p. 146]. This example reveals many things. One of them is how difficult it may be to change the emergency logic or, in other words, to what extent emergency mechanisms are able to keep working beyond and despite a formal policy and regulations that, by all means, try to avoid them.

38Crisis might also be seen as an opportunity and California sees it that way. Indeed, for the first time, with the drought as background, the Californian Legislature is formalizing efforts towards groundwater extraction regulation in California. This explains why the “Sustainable Groundwater Management Act” increasing state powers has been described as an assault on the management of Californian groundwater [Kindermann Henderson, 2014]. At the same time, it has been noticed that it is not urban users nor farmers who are suffering the most from this drought. As usually occurs, “The greatest vulnerabilities are in some low-income rural communities where wells are running dry and in California’s wetlands, rivers, and forests, where the state’s iconic biodiversity is under extreme threat” [Hanak et al., 2015a]. After all, governing a drought is more about managing water, distributing power, wealth and costs.

39Agamben also observes that, in conformity with the continuing tendency in all of the Western democracies, the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the security paradigm as the normal technique of government [Agamben, 2005, p. 14]. The Spanish drought case has been analyzed specifically from that perspective [Urquijo et al, 2015].

40The case of California provides more evidence in that respect when, after 5 years of drought and 2 years in an officially declared state of emergency, on July 16, 2015, the U.S. House of Representatives passed the H.R. 2898 – Western Water and American Food Security Act of 2015.13

41Water security is different from securitization, but the boundaries are not that clear [Lankford et al., 2013]. Since the process of securitization emphasizes the urgency of the scarcity threat in order to legitimize or make the adoption of measures that go beyond the normal bounds of politics acceptable to society [Sinha, 2005; Buzan et al., 1998], the linkage between a recognized man-made drought, emergency, the state of exception and securitization is becoming more and more clear.

Conclusion

42It was established in this paper that, firstly, drought is a normal feature of regions under study, rather than an exceptional event. Secondly, that water scarcity causes are not only natural but especially economic, social and political, related to an unsustainable paradigm of use and overexploitation. Therefore, drought cannot be lightly used for supporting the state of emergency from the constitutional or legal point of view.

43This assumption is evidence of how drought is being defined and used somehow politically rather than scientifically for governing water crisis out of the legal framework. I have made clear how emergency regulations are being used, either explicitly or implicitly, for purposes other than managing just an exceptional event.

44I have also shown in the previous pages to what extent emergency regulations are becoming the rule instead of the exception. Despite all the differences between countries, the comparative approach prevents superficial or local explanations for a complex phenomenon going on in many countries, and that risks increasing.

45This is ongoing research and much more work needs to be done, including not only documentary, interviews but also fieldwork to fill the gap between law and practice. I have no definitive answers, but I am sure that we should pay much more attention to increasing emergency regulations. They say much more than every other rule about how water is being or not being managed nowadays. Drought cannot take the place of scarcity and both, drought and emergency should be taken seriously as an opportunity and a new starting point for framing water law reforms into a more democratic and sustainable paradigm.14

46My aim in this paper was to focus attention over emergency regulations and the non-democratic arena in which they are driving water law and policy under the state of exception. There are so many strong interests defending old water laws and policies and many others doing the same in order not to apply them, but there are few people looking at what is going on the battlefield while this war is taking place.