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Module No. 9

Legal and Administrative Aspects of Water Use

Water is essential to sustain all forms of life. Without it, there would be no life on Earth. To
sustain life, we need to sustain water resources too. The World Bank noted that economic and
social developments are dependent on sustainable water resources. Water is vital to maintain
health, grow food, generate energy, manage the environment, and create jobs (2018).

Rajendra Singh, the Water Man of India, fearlessly predicted in an interview that “World
War III will be fought over water!” (Policy Innovations, 2016). This goes to show that water has
become a political commodity nowadays unlike many decades ago when “global warming”
and “climate change” are not yet buzzwords in the scientific community.

Today, water resources are under intense pressure due to rapidly increasing population.
Groundwater is being depleted at a rate faster than it is being replenished. With current
practices, there will 40 percent shortfall between forecast demand and available water supply
by 2030. Currently, 70 percent of global water withdrawals are for agriculture, which will further
increase by 15 percent by 2050 if only to produce enough food for the estimated 9 billion world
population by that time (World Bank, 2018). In the Philippines, the water demand in 1996 was
29,944 million cubic meters (MCM) per year and is expected to dramatically increase three-fold
by up to 86,500 MCM/yr in 2025 (Rola, Pulhin & Hall, 2018).

Managing freshwater resources involves ensuring reliable quantities of water of

acceptable quality, while simultaneously maintaining or restoring the ecological functioning of
water bodies that supply these amenities (Bren School of Environmental Science &
Management, 2010). To achieve these ends, the government must ensure sustainability of water
use, build climate resilience and promote sustainable water resources development and
management. To operationalize these, doctrines and water laws have to be promulgated
coupled with effective and efficient administration of irrigation infrastructures. This is our concern
in this module.

After thorough and diligent study of this module, you should be able to:

a. Describe the evolution of water rights in the Philippines;

b. Define and contrast riparian and appropriative water rights;

c. Describe the evolution of the Water Code of the Philippines (WCP);

d. Synthesize the principles of water rights in WCP;

e. Identify, prioritize and describe the purposes and uses for which water is appropriated;
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f. Describe the evolution of the National Water Resources Board (NWRB);

g. Summarize the functions, duties, and powers of NWRB;

h. Synthesize the other laws pertaining to water quality control;

i. Summarize the history of the National Irrigation Administration (NIA); and

j. Make comments and observations as to the impact and performance of NIA in your
community.
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I. Water Right Doctrines

In water laws, water right refers to the right of the user to utilize water from a natural
watercourse such as groundwater, river, stream, pond, or lake. Water right is an essential
element supporting basic human needs like drinking or irrigation including physical occupancy
of waterways for purposes of travel, commerce and even recreational pursuits (Wikipedia, 2018).

The statutory water rights in the Philippines was first introduced by the Spaniards in 1866
through the Spanish Law of Waters. This law recognized the duality of water ownership, that is,
waters are owned publicly and privately. While all natural resources were owned by the Crown,
the principle of riparian ownership of water was recognized (Kho & Agsaoay-Saño, 1979). In
property law, riparian water right (or simply riparian right) is a doctrine pertaining to properties
adjacent to a waterway that (a) governs the use of surface water and (b) gives all owners of
land contiguous to streams, lakes, and ponds equal rights to the water, whether the right is
exercised or not. The riparian right is usufructuary, meaning that the landowner does not own the
water itself but instead enjoys a right to use the water and its surface (Abrams, 2018).

When the Philippines was ceded by Spain to the United States in 1898, the riparian
doctrine remained in effect, but in addition, the American regime introduced the principle of
priority of appropriation and beneficial use of water through the Irrigation Act of 1912 (Kho &
Agsaoay-Saño, 1979). Prior appropriation doctrine is the rule that among the persons whose
property borders on a waterway, the earliest users of the water have the right to take all they
can use before anyone else has a right to it (US Legal, Inc., 2016).

The riparian (Spanish) and prior appropriation (American) doctrines institutionalized the
two water rights that have been recognized and in effect in the Philippines today. These are
discussed in the ensuing sections.

A. Water rights based on ownership of the land

All waters belong to the State (Water Code of the Philippines, PD No. 1067). In spite of this
statute, landowners have water rights based on riparian doctrine, that is, their ownership of the
land upon which the water rests or flows. This water right is a real property thus the landowner
holds an exclusive right to waters overlying and underlying his property (see riparian zone in
Figure 1). This does not imply any right of ownership over the water, but simply the right to its
beneficial and reasonable use (Wikipedia, 2018). According to Hutchins & Steele, the true test of
this beneficial and reasonable use principle and extent of its use is, “whether it is to the injury of
the other proprietors or not” (1957).

Riparian uses of water are divided into natural and artificial uses. Natural uses are those
necessary to maintain the lives of occupants of the riparian land. Artificial uses are commercial
or business uses such as irrigation, industrial, and power generation. In time of water shortage,
preference is accorded to natural uses over artificial uses, and to upstream users over those
downstream (Hutchins & Steele, 1957). In the latter case under certain conditions, however, the
prior appropriation doctrine is also applied.
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Source: Wildlife & Botanical Artists, Inc. (2015)

Figure 1. Riparian water right or water right based on land ownership

B. Water rights based on previous use or prior appropriation

According to Hutchins & Steele, where water is scarce, allocation of the flowing water is
premised upon prior appropriation. The appropriation doctrine confers upon one who actually
diverts and uses water the right to continue to do so; provided that the water is used for
beneficial and reasonable uses, regardless of whether or not that person owns the land
contiguous to the watercourse (1957).

As between appropriators, the rule of thumb in priority is 'first in time, first in right.' This rule
is illustrated in Figure 2. Prior appropriation ensures that the first water user to obtain water rights
has first access to water in times of shortage. If a downstream landowner (senior user) has the
earlier priority date, the upstream landowner (junior user) may have to let the water pass
unused to meet the needs of the senior, downstream water right holder (Hutchins & Steele,
1957). Note that prior appropriation doctrine overrides the riparian doctrine under this
particular case wherein upstream users enjoy first priority use of water over those downstream if
and only when there is water shortage.

The modern system of prior appropriation water rights is characterized by the following
principles (Wikipedia, 2018):

 Exclusive right is given to the original appropriator, and all following privileges are
conditional upon precedent rights.

 All privileges are conditional upon beneficial use, which is defined as agricultural,
industrial, or urban use.
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 Water may be used on riparian lands (land bordering a water source), or non-riparian
lands (land away from the water source).

 Diversion is permitted, regardless of the shrinkage of the river or stream.

 The privilege may be lost through non-use.

Source: Bovee (2017)

Figure 2. An illustration of prior appropriation doctrine “first in time, first in right”

The appropriative right does not confer limitless utilization of water. Each appropriator is
entitled to the use of whatever quantity of water he needs but at no time divert and use more
water than he needs. Whatever surplus water there may be in the supply may be claimed by
junior appropriators subsequent to the senior appropriator in time. This is true regardless of the
relative locations of headgates.

Unlike in the riparian right, appropriative right may be lost by abandonment when the
intent of the holder to give up his right is accompanied by actual relinquishment. No time
element is involved. When intent and relinquishment occur, abandonment takes place instantly
(Hutchins & Steele, 1957).
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II. Water Laws

A. Civil Code of the Philippines

When the Philippines became an independent state, Republic Act (RA) No. 386
otherwise known as the Civil Code of the Philippines was enacted in June 18, 1949. Most of its
provisions on water rights were both patterned after and/or modifications of the Spanish Law of
Waters and the American Irrigation Act of 1912. RA 386 affirms the right of riparian owners to the
flow of water passing through its natural channels for private ownership, subject however, to the
qualification that upstream owners should not exercise their water rights to the prejudice of the
rights legally acquired by those of the downstream estates.

B. Water Code of the Philippines

RA 386 was the only law dealing with water rights until December 31, 1976 when the
Water Code of the Philippines (PD No. 1067) was promulgated by Pres. Ferdinand E. Marcos.
Since then, the provisions of RA 386, the Spanish Law of Waters, the Irrigation Act of 1912, RA
9275, and all other earlier laws regarding water rights have been expressly repealed. The Water
Code revised and consolidated all laws that govern the ownership, appropriation, utilization,
exploitation, development, conservation and protection of water resources.

The nature of water rights can be drawn from the following principles (Art. 3, PD No.
1067):

a. All waters belong to the State.

b. All waters that belong to the State cannot be the subject to acquisitive prescription.

c. The State may allow the use or development of waters by administrative concession.

d. The utilization, exploitation, development, conservation and protection of water

resources shall be subject to the control and regulation of the government through the
National Water Resources Council.
e. Preference in the use and development of waters shall consider current usages and be
responsive to the changing needs of the country.

Waters, as used in the Water Code, refers to water under the grounds, water above the
ground, water in the atmosphere and the waters of the sea within the territorial jurisdiction of the
Philippines (Art. 4, PD 1067).

Appropriation of water, as used in the Water Code, is the acquisition of rights over the
use of waters or the taking or diverting of waters from a natural source in the manner and for any
purpose allowed by law (Art. 9, PD 1067).

Rule I, Section 1 of the amended Implementing Rules and Regulations (IRR) of PD No.
1067 promulgates that water may be appropriated for the following descending purposes and
uses:
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1st Priority – the utilization of water directly drawn from a source by a household for drinking,
washing, bathing, cooking, watering of gardens or animals and other domestic uses;

2nd Priority – the utilization of water for supplying the water requirements of a community,
whether by piped or bulk distribution for domestic and other uses, direct consumption, the
drawer or abstractor of which being the national government, its subsidiary agencies, local
government units, private persons, cooperatives or corporations;

3rd Priority – the utilization of water for producing agricultural crops (irrigation);

4th Priority – the utilization of water for producing electrical or mechanical power (power
generation);

5th Priority – the utilization of water for the propagation and culture of fish as a commercial
enterprise or any other aqua-culture ventures (fisheries);

6th Priority – the utilization of water for large herds or flocks of animals raised as a commercial
enterprise (livestock raising);

7th Priority – the utilization of water in factories, industrial plants and mines including the use of
water as an ingredient of a finished product (industrial);

8th Priority – the utilization of water for swimming pools, bath houses, boating, water skiing,
golf courses and other similar facilities in resorts and other places of recreation (recreational);
and

9th Priority – other purposes.

C. Regulatory Agency: The National Water Resources Board

Prior to the creation of NWRB, formerly known as the National Water Resources Council
(NWRC), in March 28, 1974, there were more than 30 government agencies and offices involved
and mandated to undertake various water resources development programs and projects in
the country. Project identification and planning were performed to meet the targets of each
agency with little or no regard to the needs of others.

Against this backdrop, PD 424 was issued by Pres. Marcos on March 28, 1974 creating the
National Water Resources Council (NWRC), reconstituting its membership, vesting the same with
powers to coordinate and integrate water resources development, and providing funds
therefor. The history of the evolution of NWRC to NWRB is reflected in Figure 3 (Dayrit, 2001).
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Source: Integrated Water Resources Management (2016)

Figure 3. Legal bases in the creation of the National Water Resources Board

The Council has the following functions, duties, and powers (Sec. 2, PD 424):

a. Coordinate and integrate, on a sound and logical basis, water resources development
activities of the country within the context of national plans and policies for social and
economic development;

b. Determine, adjudicate, and grant water rights amending, for this purpose, Act No. 2152,
and other laws relating to the appropriation and utilization of surface ground water;

c. Formulate and promulgate:

(1) General criteria, methods, and standards for basic data collection, project
investigation, formulation, planning and design, and feasibility evaluation; and

(2) Rules and regulation for the exploitation and optimum utilization of water resources,
including the imposition on water appropriators of such fees or charges as may be
deemed necessary by the Council for water resources development;
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d. Review and approve water resources development plans and programs of any agency
within the context of the overall national plans and program;

e. Undertake river basin survey, inventory and appraisal of water and related resources and
develop comprehensive basin-wide of storage and control to maximize the conservation
and multi-purpose use of water in the basin;

f. Undertake hydrologic surveys and establish, operate and maintain observation station
networks and a centralized water resources data center necessary for the scientific
survey and appraisal of surface and ground water potentials of the country; and

g. Conduct and/or promote special studies and researches with other government or
private agencies on all related aspects of water resources development such as
weather modification, environmental quality, desalination, and the like.

D. Other laws pertaining to water quality control

Table 1. Brief description of other water laws

Water Laws Brief Description
Republic Act (RA) No.  Provides for a program and regulations for the abatement and
9275 – The Clean management of water pollution from point and non-point sources
Water Act of 2004
 Introduces market-based instruments such as the wastewater
charge system that imposes fees based on the volume of effluents
discharge

 Strengthens enforcement by providing stiffer penalties for

violations of standards

 The permitting system has been modified to accommodate the

fee system based on amount of pollution discharged

Commonwealth Act  Prohibits dumping of refuse, waste matter or other substances into
(CA) No. 383 – Anti- rivers
dumping Law of 1938

Presidential Decree  Provides guidelines for the control of water pollution from industrial
(PD) No. 984 – sources and sets penalties for violations, also requires all polluters
Pollution Control Law to secure permits
of 1976

RA No. 9003 –  Calls for the institutionalization of a national program that will
Ecological Solid Waste manage the transfer, transport, processing, and disposal of solid
Management Act of waste in the country
2000
 Sets the criteria for siting landfills to ensure that their operation do
not affect aquifers, groundwater reservoirs or watersheds
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RA No. 6969 – Toxic  Mandates the control and management of the import,
Substances & manufacturing, processing, distribution, use, transport, storage,
Hazardous & Nuclear treatment, and disposal of toxic substances and hazardous and
Wastes Control Act nuclear wastes

RA No. 4850 – Laguna  Regulates and controls the pollution of the Laguna de Bay Region,
Lake Development including sewage works and industrial waste disposal systems
Authority Act of 1966,
as amended by PD
813

RA No. 6234 –  Constructs, operates, and maintains water systems, sewerage and
Creation of Metro sanitation facilities in the Metro-Manila area
Waterworks and
Sewerage System
(1971)

PD No. 281 – Creation  Regulates and controls pollution of the Pasig River
of the Pasig River
Development Council
(1973)

DENR Administrative  Defines classification of water bodies according to their best

Order (AO) No. 90-34 – usage
Revised Water Usage
and Classification /  Identifies the different parameters and criteria for water quality
Water Quality Criteria required for each type of classification

DENR AO No. 90-35 –  Prescribes the standards for discharge of effluents to the different
Revised Effluent classifications of water bodies
Regulations of 1990

DENR AO No. 94-26A –  Provides the different parameters and value for drinking water
Philippine National quality
Standards for Drinking
Water  Defines guidelines for assessing water quality for drinking water

PD No. 856 –  Covers solid and liquid waste disposal

Sanitation Code of the
Philippines  Prescribes standards for sewage collection and refuse and
excreta disposal

 Assigns to cities and municipalities the responsibilities to provide for

efficient and proper disposal, and to handle nuisance and
offensive trades and occupations

DENR AO No. 97-39 –  Regulates the importation, manufacture, distribution and use of
Chemical Control mercury and mercury compounds and the storage, transport, and
Order for Mercury and disposal of their wastes
Mercury Compounds
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DENR AO No. 2000-18  Identifies requirements and procedures pertaining to the

– Chemical Control importation, manufacture, distribution, and use of cyanide and
Order for Cyanide cyanide compounds and the storage, transport and disposal of
and Cyanide their wastes
Compounds

DENR AO No. 98-58 –  Identifies existing and new chemicals that the DENR has
Priority Chemical List determined to potentially pose unreasonable risk to public health,
workplace, and the environment

 Requires all manufacturers, distributors, users, and importers of

chemicals included in the PCL to submit bi-annual reports

Source: Greenpeace (2007)

III. The National Irrigation Administration

Prior to 1963, irrigation in the Philippines had been without sustained and concerted
efforts to develop and operate irrigation infrastructures until the National Irrigation Administration
(NIA) started operations in 1964. NIA is a government-owned and controlled corporation
(GOCC) primarily responsible for irrigation development and management in the Philippines. It
was created by virtue of Republic Act (RA) 3601 on June 22, 1963. Its charter was later amended
by Presidential Decree (PD) 552 on September 11, 1974 and PD 1702 on July 17, 1980, both
increasing its capitalization and broadening its authority.

NIA's forerunner was the Irrigation Division of the defunct Bureau of Public Works. NIA was
placed under the Office of the President (OP) upon its creation. In 1972, it was attached to the
Department of Public Works, Transportation, and Communication under PD No.1. Said PD also
integrated all irrigation activities under NIA. By operation of the Administrative Code of 1987, NIA
was attached to both the Department of Public Works and Highways (DPWH), and the
Department of Agriculture (DA) but NIA opted to remain attached to DPWH. On September 14,
1992, NIA was transferred to OP pursuant to Executive Order (EO) No. 22. A month after in
October 14, 1992, it was attached to DA under Administrative Order No. 17.

In May 5, 2014, NIA including the National Food Authority (NFA), Philippine Coconut
Authority (PCA), and Fertilizer and Pesticide Authority (FPA) were transferred under the OP
through EO No. 165. Memorandum Order No, 70 issued on the same date provided for the
functions of the Presidential Assistant for Food Security and Agricultural Modernization. A
Memorandum from the Executive Secretary-OP on November 3, 2016 designated the Cabinet
Secretary as Acting Chairperson of the NIA Board of Directors, the governing body of the
agency (National Irrigation Administration, 1990).

NIA has the authority and powers to (RA No. 3601):

a. Investigate, study, improve, construct and administer all irrigation systems in the
Philippines;

b. Investigate all available and possible water resources in the country for the purpose of
utilizing the same for irrigation;
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c. Plan, design and construct the necessary projects to make the ten to twenty-year period
following the approval of the Act as the “Irrigation Age” of the Republic of the
Philippines;

d. Collect from the users of irrigation systems constructed by it such fees as may be
necessary to finance their continuous operation and reimburse within a certain period of
not less than twenty-five years the cost of construction thereof; and

e. Do such other things and to transact all such businesses as are directly or indirectly
necessary, incidental or conducive to the attainment of its vision, mission and objectives.
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Passing Score: 75 points

Due Date: ASAP but not later than ____________________________________.
Penalty for Late Submission: 5 points deduction per day of delay

If space is not enough, continue at the left-side directly opposite the item being answered.

1. In not more than 100 words, describe the evolution of water rights in the Philippines. (10 pts)

2. Define and contrast riparian and appropriative doctrines. (10 pts)

Riparian doctrine –

Prior appropriation doctrine –

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3. Describe briefly in chronological order the evolution of the Water Code of the Philippines. (5
pts)

4. Synthesize the principles of water rights in the Water Code of the Philippines (WCP). (15 pts)
 15

5. Enumerate the priorities and purposes for which water is appropriated. Describe each briefly.
(10 pts)

6. Describe briefly in chronological order the evolution of the National Water Resources Board
(NWRB). (5 pts)
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7. Summarize the functions, duties and powers of NWRB. (10 pts)

8. Synthesize the other laws pertaining to water quality control. (10 pts)
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9. Summarize briefly the history of the National Irrigation Administration (NIA). (5 pts)

10. Based on your observations, make comments as to the impact and performance of NIA in
your community relative to its corporate objectives. (20 pts)
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Abrams, R.H. (2018). Riparian right. In Encyclopaedia Britannica, Inc. Retrieved from
https://www.britannica.com/topic/riparian-right

Bovee, B. (2017). Valuing water rights. The Colorado Real Estate Journal. Retrieved from
https://coyotegulch.blog/2017/02/28/valuing-water-rights/

Bren School of Environmental Science & Management. (2010). Water resources management.
University of California at Sta. Barbara. Retrieved from
http://bren.ucsb.edu/academics/mesm_specialization/water_res_mgt.htm

Clipart Library. (n.d). Agricultural and biosystems engineering [Logo]. Retrieved from
http://clipa.cash/agricultural-biosystems-engineering-logo.html

Dayrit, H. (2001). The Philippines: Formulation of a national water vision. In The FAO-ESCAP pilot
project on national water visions - From vision to action - A synthesis of experiences in
Southeast Asia. Ti, L.H. & Facon, T. (eds.). Retrieved from
http://www.fao.org/docrep/004/AB776E/ab776e03.htm

Greenpeace. (2007). The state of water resources in the Philippines. Quezon City, Philippines:
Greenpeace Southeast Asia. Retrieved from
https://www.greenpeace.org/seasia/ph/Global/seasia/.../the-state-of-water-in-the-
phil.pdf

Hutchins, W.A. & Steele, H.A. (1957). Basic water rights doctrines and their implications for river
basin development. Retrieved from
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2717&context=lcp

Integrated Water Resources Management. (2016). Overview of IWRM in the Philippines.

Retrieved from http://aseaniwrm.water.gov.my/iwrm-in-philippines/

Kho, J. & Agsaoay-Saño, E. (1979). Country study on customary water laws and practices in the
Philippines. Retrieved from
www.fao.org/fileadmin/templates/legal/docs/CaseStudy_Philippines.pdf

National Irrigation Administration. (1990). A comprehensive history of irrigation in the Philippines.

Quezon City, Philippines: Agency. Retrieved from
www.nia.gov.ph/sites/default/files/pdf_reader/nia-book.pdf

____________________. (2017). Overview. Quezon City: Agency. Retrieved from

http://www.nia.gov.ph/?q=content/overview

National Water Resources Board. (n.d). Amended implementing rules and regulations (IRR) of
PD 1067 otherwise known as the Water Code of the Philippines. Retrieved from
www.nwrb.gov.ph/images/laws/pd1067_amended.pdf
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Policy Innovations. (2016). Rajendra Singh: “World War III will be fought over water.” [Interview of
Gupta, A. (Writer)]. Retrieved from https://qz.com/691254/world-war-iii-will-be-fought-
over-water/

Presidential Decree No. 424. (1974, March 28). PD creating the National Water Resources
Council (NWRC), reconstituting its membership, vesting the same with powers to
coordinate and integrate water resources development, and providing funds therefor.
Retrieved from http://www.lawphil.net/statutes/presdecs/pd1974/pd_424_1974.html

____________________ 1067. (1976, December 31). The Water Code of the Philippines. Retrieved
from http://www.lawphil.net/statutes/presdecs/pd1976/pd_1067_1976.html

Republic Act No. 386. (1949, June 18). The Civil Code of the Philippines: An Act to ordain and
institute The Civil Code of the Philippines. Book 2, Title VII, Chapter 2, Section 2, Articles
637 – 648. Retrieved from https://philippinecivillaw.wordpress.com/tag/legal-
easements/

____________________ 3601. (1963, June 22). An Act creating the National Irrigation
Administration. Retrieved from
http://www.chanrobles.com/legal3nia.html#.WimgkHlx3IW

Rola, A.C., Pulhin, J.M. & Hall, R.A. (Eds.). (2018). Water policy in the Philippines: Issues, initiatives
and prospects. Switzerland: Springer International Publishing AG. Retrieved from
https://books.google.com.ph/books?isbn=3319709690

Tan, C. (1915). Water rights in the Philippines. Retrieved from

http://www.plj.upd.edu.ph/.../PLJ%20volume%202%20number%203%20-03-
%20Carlos%20Tan

US Legal, Inc. (2016). Prior appropriation doctrine law and legal definition. Retrieved from
https://definitions.uslegal.com/p/prior-appropriation-doctrine/

Wikipedia. (2018). Water right. Retrieved from https://en.wikipedia.org/wiki/Water_right

Wildlife & Botanical Artists, Inc. (2015). Riparian right [Illustration]. Retrieved
http://waba.net.au/forum/2015/3/30/concept-drawing-of-the-riparian-zone-calling-
interested-waba-artists

World Bank. (2018). Understanding poverty: Water – An overview. Retrieved from

http://www.worldbank.org/en/topic/water/overview