CAN A WATER RIGHT BE SEPARATED FROM THE LAND TO WHICH IT IS ATTACHED AND SOLD FOR USE ON OTHER LAND OR FOR OTHER PURPOSES?

In the coming decades, as growing numbers of people live in urban areas and climate change makes some regions much more prone to drought, water-or what many are calling "blue gold"-will become an increasingly scarce resource. By 2030 nearly half of the world's population will inhabit areas with severe water stress, according to the Organization for Economic Cooperation & Development. Some states in the U.S., like Texas is unusually lax in its laws about pumping groundwater, the rush to control water resources is gathering speed around the planet.

Modern water rights typically last for 15-20 years in respect of ordinary activities and up to 50 or ven 70 years in respect of major investments such as the construction of a new hydro-power dam. Thus in Spain an administrative concession may not exceed 75 years while in Mexico they last for between 5 and 50 years and in South Africa they may last for up to 40 years.

Once a water right has been issued, the right holder can expect to be able to rely on that right throughout the period of its duration. While at the end of that period the right holder may have an expectation that the right will be continued, s/he has no legal guarantee in this respect. In other words no compensation is payable if a water right is not renewed, either in full or in part.

Conditions requiring continued use of the resource are commonly found in modern water rights: failure to use the water that is subject to the right for a specified period, say three years, may lead to the right being forfeited. Indeed, in those jurisdictions in which the 'prior appropriation' doctrine applies the fact of use is not itself sufficient: the water that is subject to the right must be put to 'effective and beneficial use'.

Another key obligation, usually also contained as a condition in a water right, has traditionally been to use the water only on a specified parcel of land. Beyond these basic obligations, modern water rights are usually subject to a number of conditions of both general application to all water rights (and which are typically spelt out in the legislation) and of specific application to individual rights (which are usually spelt out in the instrument that creates the right).

In short, apart from the need for constant measurement and monitoring activity, the picture that emerges is that, in contrast to land tenure rights, water rights are dependent on the active management of the resource. Furthermore, the trend as regards water administration institutions is increasingly towards taking a drainage basin approach. In other words water is managed by reference to the shape or form of the land that forms the catchment of a major river, and its tributaries, from the upper watersheds down to the sea, or other final 'terminus' (such as a lake). This approach is entirely logical from a hydrological perspective given that surface water within the basin will naturally flow in a common direction towards that terminus. But it means that water resources management is undertaken over what can be a very large land area, one that often does not accord with administrative boundaries, and can thus become a rather complex and expensive process.

In Australia, the scene of many years of drought, brokers in urban areas are buying up water rights from farmers. Though the difficult questions remain in regards to allocating ownership and the right to sell water rights, rural residents around the U.S. are trying to sell their land (and water) to multi- national water bottlers like Nestlé. Companies that use large quantities of the precious resource to run their businesses are seeking to lock up water supplies. One is Royal Dutch Shell, which is buying groundwater rights in Colorado as it prepares to drill for oil in the shale deposits there. Clearly the ownership of water rights is quickly becoming a valueable asset.