TERMS OF REFERENCE
FOR THE ANALYSIS OF INSTITUTIONAL ASPECTS RELATED TO WATER MANAGEMENT,
WATER USE ALLOCATION, POLLUTION CONTROL AND URBAN DRAINAGE
MANAGEMENT
I. GENERAL INFORMATION
1. Project: Japanese Grant No. TF051886, to provide assistance in the preparation of a Sustainable
Development Structural Adjustment Loan (SAL)
2. Activity: Analysis of options for institutional support in the reform of environmental policies
II. BACKGROUND
Law 99 of 1993 assigns to the Ministry of Environment, as one of its primary functions, the
responsibility of defining policies and regulations with respect to the restoration, conservation,
protection, planning, management, and use of Environmental and Renewable Natural Resources to
ensure their sustainable development.
Within this framework, water is a theme of vital importance in environmental policy development,
given its strategic importance for the integration of the country’s natural resource, social, and
economic systems; and that the conservation and restoration of the regulation capacity of the
country’s water systems are important in guaranteeing the sustainability of this natural resource.
Colombia is a country rich in surface water and groundwater resources. Although these resources
are not evenly distributed (both regionally and seasonally), the hydrologic, climatic and topographic
conditions guarantee a good water supply and a dense hydrological network throughout most of the
country. Nevertheless, in the country’s regions and municipalities, in the majority of cases, clear
policies on the management of water resources do not exist.
The country’s large population centers, as well as industrial, agricultural, livestock, and
hydroelectric centers, have developed in areas where water supply is less favorable, generating both
pressures and concerns with respect to resource availability. This is particularly problematic for
urban centers during periods of extreme weather conditions, such as droughts and El Niño.
The country’s water supply is progressively declining, with water quality affected by
socioeconomic and industrial activities that discharge wastes into tributaries, generally without prior
processing. In many cases these water bodies receive high volumes of sediments, as a result of
natural erosion processes or human activities. Water availability is affected by the degradation of
river basins, causing a progressive reduction in the natural regulation of the basin, which in turn
prolongs periods with low-water.
Many of the hydrological systems that currently supply water to the Colombian population run the
risk of not being able to maintain their current water supply levels. According to general estimates
for average hydrological conditions, nearly 50% of the population in urban areas faces water supply
problems due to conditions related to availability, regulation and pressures that exist in the
supplying hydrological systems. This situation becomes critical during periods of droughts, when
up to 80% of the population can face water supply shortages. (IDEAM 2000).
More than 80% of municipal water sources are supplied by small water sources (wells, streams, and
small rivers), with low regulation conditions and high vulnerability. Therefore, it becomes
important to know the state and dynamics of these systems in order to regulate their use and
sustainably manage water resources.
According to the National Water Study, carried out by IDEAM, if measures for the conservation,
regulation and adequate management of water resources, as well as pollution reduction, are not
taken the country in some regions will face serious difficulties in supplying water to the population.
The Constitution of 1991 redefined the State’s responsibilities, requiring that it guarantee the
sustainability of natural resources, and Law 99 of 1993 reorganized the State’s institutional
structure, adapting it to the responsibilities assigned by the Constitution. However, integrated water
management continues to be a goal that remains to be accomplished.
This goal becomes more relevant and complex, when the new institutional structure created under
Legal Decree 216 of 2003 is taken into account, which assigns to the Ministry functions related to
potable water and basic sanitation. This forces the new Ministry of Environment, Housing and
Territorial Development (MAVDT) to redirect its policies and as a result, its regulations and other
norms.
To implement this new institutional structure requires a new conception among decision makers, in
which environmental considerations should be integrated with social and economic considerations.
This integrated vision should encompass all types of ecosystems and bodies of water (surface and
ground waters, as well as coastal and marine) and should consider aspects related to water quality
and quantity. The multi-sectoral nature of water supply should be recognized in the context of
socioeconomic development, as well as the usage of these resources for multiple purposes, such as
water supply and sanitation, agriculture, industry, urban development, hydroelectric energy
generation, fishery, transport, recreation, territorial planning, and other activities. Water usage
should be supported by measures directed at promoting the efficient, rational use of water, as well
as reducing improper usage.
In determining national water issues, three institutional constraints stand out that limit achieving
concrete results in the restoration of water resources as well as meeting the country’s sustainable
development needs:
Lack of a social culture of water management and of sustainable service provision. Currently,
water access is supplied at prices that do not correspond to prices that would guarantee resource
availability in relation to demand. This has brought about a mistaken conception regarding water,
where it is considered an unlimited resource, without any restrictions placed on usage and any
incentives for its conservation, management and protection. Consequently, water is treated as an
abundant resource, while in reality regions are facing relative shortage problems.
On the other hand, concepts relating to the integrated management of water, air, soil, and natural
resources are not applied, given a lack of knowledge on the natural physical behavior of
hydrological resources and of water as a regulator in the natural resource system.
During the last few years, plans for providing household public services for water and sanitation
have been the subject of great discussions, which primarily, have been linked to the theme of tariffs.
Highly important aspects such as the protection of river basins, service coverage and quality, among
others, have not been considered, at the detriment of the sector’s sustainability.
Lack of implementing instruments. Despite the variety of instruments that can be applied to meet
environmental objectives, such as economic, administrative, investment, and legal instruments,
greater emphasis has been placed on legal instruments, without considering a broader scope that
would offer an adequate and balanced articulation of the different available instruments.
Deficient inter-institutional coordination. Water basin management, which in many cases does not
fall under the jurisdiction of only one environmental authority and/or territory, requires close
coordination, but for various reasons has not reached a satisfactory level of coordination.
From the regulatory point of view, Colombia has several regulations on water usage, management,
storage, and pollution. Nevertheless, the current legislation is disperse and contains some gaps,
making it difficult for those entities with environmental management competencies to efficiently
manage water resources. In fact, they face a varied and contrasting legal framework, with different
laws, norms, and decrees, that hinder an effective management of water sector plans and policies.
Additionally, water resource users are faced with a deficient legal body, that generates and fosters
frequent legal conflicts among individuals, both public and private, leading to irresponsible
behavior in resource management on the part of users.
Since 1995 the Ministry of Environment, in accordance with its principal mandate to oversee the
country’s environmental management, has carried out specialized studies on water resource
management policies and regulations. These include: (i) studies on the formulation of a National
Water Strategy, (ii) studies on the formulation of the National Water Statute, (iii) studies on
regulations for tasas retributivas (water pollution charges) and water usage charges, and (iv)
proposals for the modification of Decrees 1541 and 1594 of 1984, related to water concessions and
water quality (Annexes 1 through 4 provide the respective reports).
The National Government has contracted consultancies for the formulation of a Ten-Year Plan for
Wastewater, an Inventory Diagnostic of Colombia’s Wastewater Treatment Systems, and the
Formulation of a Water Resource Management Model. Annex 1 provides the corresponding
references to these studies, which can be found in the MAVDT’s Documentation Center. Also
useful as reference are articles on the Management of Water Resources in Colombia by James S.
Shortle and Fernando Gaitan (1996), and the Control of Water Contamination in Colombia by
Dolores Espino and John Horowitz (1996), as well as the book Industrial Pollution in Colombia by
Sanchez Triana et al. (1994)
Additionally, in 1996 the National Environmental Council approved the document “Policy
Guidelines for Integrated Water Management;” in 2000 the guidelines for “Environmental Policy
for Coastal Zone Management” were formulated; and in 2002 the document “Environmental Policy
for Wetlands Management” was approved. It is also important to highlight other policies that were
issued, such as: “National Policy for Cleaner Production,” “Biodiversity Policy,” “The Forestry
Plan,” and “Policy Guidelines for Environmental Territorial Development.”
The National Development Plan of 2002 - 2006 “Toward a Common State”, establishes as a priority
in terms of environmental sustainability the passing of a Water Framework Law, through which a
policy for integrated water management will be developed. The Plan also establishes the importance
of formulating a State Policy related to integrated water management, that combines biodiversity
conservation of both flora and fauna. Thus, a goal of this Development Plan is the implementation
of territorial and integrated micro river basin management plans in nearly 500,000 hectares,
including the restoration of approximately 120,000 hectares of protective plantations, especially in
those zones where water supply sources are located.
Along the lines of the National Development Plan, the Ministry of Environment, Housing and
Territorial Development submitted to Congress a project that modifies Law 99 of 1993, in which
Water Basin Councils1 are introduced with the objective of optimizing the country’s water resource
planning processes. These Councils are envisaged to facilitate the coordination and implementation
of policies, plans, programs and projects among national, regional and local levels and foster active
discussions among different actors, guarantying a wide participation among water users, civil
society, and the authorities responsible for its management. Moreover, they aim to generate
awareness, among both users and other stakeholders, of the problems, potential, and challenges
regarding water resources in their regions, with a view to developing the policy objectives set out
for integrated water management in Colombia since 1996.
This leads to the definition of an integrated legal and management instrument for water, that allows
for: (a) advancing the constitutional precept in order for environmental management, and the
management of water resources, to be decentralized, democratic and participatory; (b) defining the
guidelines to achieve integrated water resources management; (c) articulating environmental
management (conservation, use, and management) with territorial planning and the economic and
social development of the country; (d) promoting community welfare through the efficient and
sustainable use of water resources, as an important input into value added processes, such as its
capacity to transport wastes originating from human activities and its role in preserving protected
ecosystems and in biodiversity protection; (e) providing flexibility to the institutions in charge of
developing integrated water management, in the selection and application of management
instruments according to their own conditions within their jurisdictions, supporting the achievement
of environmental goals; and (f) clearly defining the responsibilities of different stakeholders that
take part in achieving efficient and integrated water resource management, clarifying the
distribution, coordination, and complementarities of State competencies at different levels,
particularly those related to water resources management.
III. OBJECTIVE OF THE CONSULTANCY
The objective is to carry out legal and technical studies that support the development of an
integrated water resource management law project, that considers administrative, usage allocation,
pollution control, and urban drainage management aspects, in such a way that allows for a
modernized and more efficient management of water resources in Colombia.
IV. SPECIFIC OBJECTIVES
1. To identify and determine, based on available information, the condition and characteristics of
water resources in Colombia (supply, demand and distribution). In addition, the consultant will
assess the performance of different institutions linked with integrated water resource management
in Colombia. The study will determine the importance of water resources in the national context,
indicate strengths and weaknesses in its administration, and identify critical elements that require
modifications within the legal framework, as well as required actions to be taken to achieve the
country’s social, economic and environmental goals.
1
The Water Basin Councils, through their collective construction, aim to develop efficient water planning
processes, that reflect the commitment on the part of communities and users in general, and that harmonize
regional and local needs with a view to guarantee sustainability of water supply.
2. To identify gaps and inconsistencies with respect to the existing legal framework and the
management of the water sector in Colombia, through the following: (a) the review and analysis of
current legislation; (b) a conceptual, technical and legal analysis, based on primary and secondary
information that includes studies, policies, and regulations in water subject matter, developed by the
Ministry of Environment, Housing and Territorial Development, either directly or indirectly, in
support of the formulation of an Integrated Water Management Law Project; and (c) an analysis of
the perceptions of both regulatory agencies and those who have been responsible for managing
water resources and understand the limitations imposed by the current legal and institutional
frameworks.
3. To propose, based on the previous analysis, a framework document that supports an Integrated
Water Management Law Project, clearly distinguishing between those elements that should be part
of a Law with those elements that should be part of regulation processes. The document should
contain proposals with respect to the structure, components and content to be included in the Legal
Framework Project for Integrated Water Management.
4. To identify the societal groups who will benefit from the potential modifications to the current
legal framework, as well as the groups that will be affected by the proposed modifications. The
identification of these groups will provide a special emphasis on those groups who are most
vulnerable, given their income level, ethnic origin, age, gender, or conditions that hinder them from
voicing their interests at decision-making levels within the legal and sector policy frameworks.
V. SCOPE OF WORK
Analysis of the different components for integrated water management in Colombia.
The
consultant will carry out an analysis of the Colombian water sector, taking into consideration water
as a natural resource, as an element of sustainability within protected ecosystems, and as an element
of biodiversity protection. Additionally, the analysis should consider water resources in terms of
supply, as an economic good, as an input into productive processes, as well as its availability,
variability, vulnerability, and usage limitations (taking into account the demand for water
resources). The analysis should examine the needs for different uses, indicating quantity and quality
requirements (of those who take water from its natural sources), and present feasible scenarios for
the anticipated growth of demand over time. The analysis of the different components for water
management in Colombia should also include a description of the institutional framework for water
management,2 taking into consideration the entities created for its monitoring, investigations,
planning, management, regulation and conflict management. In addition, the analysis should also
consider current legal instruments, the cultural developments for its management and use,
distribution of responsibilities, and the incentives created by the current institutional framework for
the achievement of social, economic, and environmental objectives.
The collection and analysis of information will offer a general view of Colombia’s water resources,
including their availability and uses, as well as the needs, conflicts, strengths and weaknesses
associated with their administration. The study should highlight the importance of integrated water
management within the national context and clearly determine existing conflicts, characterizing
them and relating them to the current institutional framework. The critical analysis of collected
information will permit a judgment of the water sector’s performance. In other words, it will
highlight the achievement of goals as well as social, economic, and environmental objectives, and
2
By institutions, the rules of the game that restrict and shape human behavior are understood (North 1990),
including formal or informal legal frameworks that are used for the administration and management of water
resources.
identify strengths, limitations, weaknesses or institutional bottlenecks that should be analyzed in the
formulation of the Integrated Water Management Law.
Based on the review of collected information, the consultant will present a summary indicating the
patterns of supply (quantity and quality) and demand (quantity and quality), in relation with
authorized concessions and with the principal economic activities associated with water supply and
demand in the country.
Technical and legal conceptual analysis of current water policies, regulations, and studies. The
consultant will collect and analyze current water policies, regulations, and studies that have been
carried out, in order to assess their implementation at different levels: National, Regional and Local.
Based on this evaluation, the gaps, conflicts, and inconsistencies of these instruments should be
identified, as well as the need to update and/or modify them, with the purpose of providing an
effective response to the identified problems.
Based on a review of the country’s current legal framework, an analysis should be carried out in
order to identify its strengths, gaps, and inconsistencies. Also, water policies (at the national and
regional levels) in effect since 1990 should be evaluated. The evaluation should help assess current
institutional capacity. In the same way, the consultant should examine the implications of legal
sentences ordered by the Courts and the State Council, on topics associated with the application of
current legal instruments associated with water.
The consultant will review international experience in water regulation that was presented in a
water management workshop, that took place in Bogotá during September 12 - 15, 2003. The
consultant should evaluate international case experiences, such as those in Mexico, Brazil, the
United States, France and Chile, in order to identify potential practices that could be adapted to
solve problems found in Colombia. The study should review and examine international experiences,
taking into consideration the following aspects: (i) institutional design and designation of
competencies, (ii) legal and economic instruments implemented in resource management, (iii)
mechanisms to conserve and maintain strategic ecosystems, and to control and prevent pollution,
(iv) water rights systems, (v) social participation and users associations. These experiences should
be examined to evaluate the scope of the norms, and their pertinence and applicability in Colombia.
The analysis should give special emphasis to the application of the Renewable Natural Resources
Code and Law 99 of 1993 on subjects related to the management and administration of water
resources, as well as principal regulatory developments (Decrees 1541/78, 1594/84, 901/97,
1729/2002). Additionally, the applicability of such norms under the current institutional structure of
the National Environmental System (Sistema Nacional Ambiental – SINA) should be evaluated.
The analysis of the current norms should be based on both efficiency and equity. The efficiency
analysis should allow for an identification of the costs and benefits to society related to the current
water regime. The equity assessment should be carried out as a stakeholder analysis. This analysis
should identify both groups that benefit from and groups that pay costs or are affected by the
current water structure.
The consultant will carry out a critical analysis of the proposals to modify the current legal
framework, particularly proposals from: (i) The Ministry of Environment, Housing and Territorial
Development (MAVDT), (ii) Congresswoman Nancy Patricia Gutierrez, (iii) EAAB (Los Andes
University)– Bogotá’s Water and Sewerage Company. The objective of reviewing these proposals
is to evaluate their potential to enrich the Integrated Water Management Law Project. The analysis
of these proposals should include an examination of the accuracy of definitions, and the legal
certainty, efficiency, effectiveness, and feasibility to apply the different legal components of the law
in different regions of the country, including the following components:
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Principles.
Property rights and allocation of water usage rights (concessions, permits).
Mechanisms of pollution control.
Mechanisms of urban drainage management, and reduction of natural disaster vulnerability.
Organization for the management, oversight, and control of water resources.
Monitoring and supervision systems.
Mechanisms to ensure continuous improvement of norms, policies, and water resource
management, in general.
Field Analysis, and approach for methodology and problem definition. Based on the information
gathered above, the consultant should examine the opinions of those who have, or have had, the
responsibility of water resources management, and are aware of the constraints imposed by the
institutional and legal framework in achieving environmental goals. The consultant should consult
resource users to understand the restrictions, for which objectives initially anticipated in the Law
have not been met.
In order to consult the different stakeholders involved in water resources management, the
consultant’s analysis will include field work to identify inconsistencies in the applicability of the
legal framework. The consultant should visit the various water institutions and entities
(Autonomous Regional Corporations – CARs, territorial institutions, water companies, the Potable
Water and Basic Sanitation Regulation Commission, economic associations, users associations,
Ministries, Institutes of the National Environmental System (SINA), among others). Such that, the
water sector’s problems are identified, for continental waters in its different uses, as well as for sea
waters.
Structure, components and content of the Integrated Water Management Law Project. The
consultant should prepare supporting documents for the formulation of the Integrated Water
Management Law Project. The consultant should identify and prepare supporting documents for
each chapter of the Law Proposal that provide technical support. For example, the consultant will
assess the existing jurisprudence on property rights with respect to water concessions and permits,
and the possibility of making these instruments transferable under certain and specific
circumstances, according to the needs of the different water users. Similarly, the consultant will
explore topics such as the definition and limitations of ownership, associated with riparian areas,
riverbeds, brooks, environmental management zones, and their relation with the adequate
management of water resources.
The consultant’s analysis should identify the strengths, weaknesses, and limitations for achieving
integrated water management. The consultant should also study the responsibilities or obligations of
water users, drainage systems, wastewater disposal, and the mechanisms and tools available for
their management and control.
Based on this analysis, the consultant should establish the content structure of the law project,
together with the articles that form it. It is expected that, as a minimum, the following topics will be
included: (a) governing principles of integrated water management law in Colombia (of
participation; decision making; those who pollute pay; water as an economic good; allocating water
resources; user equality; acquired rights; financial viability and social sustainability, etc.); (b)
participatory planning; (c) resource conservation, use, distribution, and management; (d) the
institutional framework and competencies framework; (e) flexibility in the adoption of economic
and planning instruments on the part of managers (including voluntary transfer rights to third parties
and the possibility of creating a “market” for these rights); (f) participatory management; (g)
conflict resolution and the development of institutions according to each jurisdiction’s cultural
characteristics; (h) ecologic uses of water in protected ecosystems and biodiversity protection; (i)
riverbeds, riparian areas, and special environmental management zones that provide a surrounding
for water bodies; (j) collection and analysis of information on water resource availability and
quality, as well as its uses and contribution to development; (k) vulnerability to extreme natural
hydrological events and their management; (l) development of the necessary knowledge base to
improve the management, effectiveness, and efficiency of water resources use; and (m) financing of
integrated water resources management. In addition, the law project should include, if necessary,
chapters that address the special characteristics of groundwater, coastal waters, and estuaries. The
law should also provide a framework for international waters shared with neighboring nations, and
the consultant’s study should present the analytical bases for developing a Natural Resources Code,
Law 99 of 1993, an outline of the primary regulation models that will develop the Law, as well as
an application manual, in order to furnish the Ministry of Environment, Housing and Territorial
Development with the necessary inputs to achieve an effective and expeditious implementation of
the law.
VI. EXPECTED PRODUCTS
The Consultant will be responsible for the following products:
1. Document that characterizes water resources in Colombia. This document should highlight
water’s role in national development, its participation in the achievement of social, economic
and environmental goals, and identify issues that represent constraints to integrated water
resource management and therefore, should be taken into account in the formulation of the
Water Law project.
2. Technical-Legal Document that supports the proposals to develop in the Water Law
project. This document should contain the technical and legal conceptual analysis of current
water policies, regulations, and studies, and the required justification to support the
incorporation of concepts, principles, mechanisms, tools, and procedures that facilitate
integrated water resource management.
3. Analysis of Efficiency and Equity of Current Laws. Analysis of the efficiency and equity of
current norms, as well as the Water Law project proposals from MAVDT, Congress, and EAAB
(Los Andes University).
4.
Technical and Legal Content Proposal. This proposal will be the analytical basis for the
Water Law project, which will be prepared with resources from the Japanese Grant No.
TF051886, that incorporates the required concepts, principals, mechanisms, tools and
procedures to develop and strengthen integrated water resource management. The study should
show the economic, legal, and technical advantages, particularly in terms of efficiency and
equity, of the selected proposal with respect to the current legal framework and the project law
proposals analyzed. The study should also identify the stakeholders that will benefit from the
proposals of the law project, as well as those groups affected by the proposed reforms.
VII. EXPERIENCE OF THE CONSULTING FIRM
The consulting firm should have, at a minimum, eight-years experience, with the corresponding
references or certifications, in at least two of the following areas: (i) design of public policy
proposals related to water resource management; (ii) evaluation of the efficiency and effectiveness
of public policies oriented toward water resource management; and (iii) studies and design of
economic instruments for water resource management.
The consulting firm should not find itself incompatible with articles 8 and 9 of Law 80 (1993) or
Colombian Law, nor any of the provisions established by the World Bank.
The consulting team should include the following types of professionals: (i) engineer, (ii)
economist, (iii) regional planning specialist, (iv) a professional with a graduate-level degree in an
environmental field, and (v) biologist.
VIII. TIMEFRAME
A period of four (4) months is anticipated under the contract.
IX.
REPORTS
In addition to a work plan and timetable presented at the contract’s inception, the consultant should
submit the following reports:
- First draft. This draft should be presented one month after contract inception, and should
include the products listed in items 1 and 2 in Section VI (Expected Products).
- Second draft. This draft should be presented two months after contract inception, and should
include the products listed in item 3, Section VI (Expected Products).
- Third draft. This draft should be presented three months after contract inceptions, and should
include the products listed in item 4, Section VI (Expected Products).
- Final Report. The final reports should include the products mentioned in items 1 through 5 in
section IV, and incorporate comments provided on the previous drafts by a review committee
comprised of officials from the MAVDT and Congress.
X. CONTRACT SUPERVISION
The MAVDT through the Vice Ministry of Environment is responsible for supervising the work carried
out under the Contract. Additionally, a review committee comprised of officials from MAVDT and
Congress will be responsible for the technical supervision of the study.