Hydroecological connectivity as a normative framework for aquatic ecosystem regulation: lessons from the USA
Very little has been achieved during the first five decades of development and application of what is now known as environmental law, in terms of slowing the global rate of biodiversity loss and ecosystem degradation. A major factor in this lack of effectiveness has been, perhaps, too narrow a focus on individual elements that exist within ecosystems, rather than on the health of the ecosystems themselves. Additionally, very little attention has been paid to maintenance of the integrity of the many types of connections that exist between the different components of ecosystems, notably aquatic ecosystems. These components are connected not only by water, but also by a variety of ecological connections and pathways ¾ here termed 'hydroecological connectivity' (HEC). These connections are not only important in terms of providing abiotic and biota corridors between components, but they also act as conduits which can translocate pollutants from one location, over vast distances, throughout a fluvial ecosystem, consequently impacting virtually all areas of human life and nature. This thesis outlines the science underpinning the first connectivity-based water law regulation, the American Clean Water Rule (CWR) and analyzes a set of legal challenges to this Rule. Barring one instance, no substantive merit was found for any of the disputed claims. Furthermore, this thesis identifies the transferability of the Rule to South Africa. It was possible to empirically substantiate the merit of the single instance that lacked appropriate qualification in the CWR. The importance of HEC is elucidated in this work using the example of headwater streams which, in aggregate, comprise 79 per cent of the aggregate length of the mapped rivers in South Africa. Also provisionally evaluated is a brightline distance, lateral to fluvial watercourses, within which water resource components that are likely to be connected to the mainstem will be found. This provides a guideline for HEC-directed administrative decision making. A connectivity-based approach to water resource governance will require limitations on some land uses on portions of land that is likely to be perceived as terrestrial but which, in fact, forms part of an aquatic ecosystem. This requirement raises obvious implications for property ownership and expropriation. Here the principles of the public trust, already legislatively expressed in South African water law, provide an institutional legal framework that renders 'public' any lands which form part and parcel of the integrity an aquatic ecosystem. The public trust doctrine anchored the reform of the post-apartheid water law of South Africa. It was introduced in a transformative and emancipatory approach to the democratisation of the nation's water resources and the restoration of water equity. This work provides the first historico-legal and comprehensive perspective of the genealogy and intentions for, the public trust in South Africa, and distils out the principles which the trust embodies. An example protocol is developed which shows how the trust principles underpin the formulation of guidance for determinations of beneficial water uses. Recommendations are made regarding the operationalization of the currently moribund South African public trust in water and highlights the role of the public trust as an effective and reformatory tool of water law. In summary this work is a translational and transdisciplinary example of aquatic science into environmental law. The complex and challenging concept of HEC is communicated in plain language and then its perceived weak point ¾ the need to isolate areas of land which form part of the aquatic resource and incorporate these within the trust res ¾ is construed using the principles of the public trust doctrine. Simultaneously the potential of the public trust to offset obstacles to environmental protection, such as the need for reformed guidance for administrative decision making, has been highlighted. On this model the public trust enfolds an ecosystem-directed HEC approach into a transformative and normative governance package which is integrative, adaptive, multi-disciplinary and proactive.
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