Constructing normative frameworks from local practices

The previous section discussed several examples that demonstrate the validity and prevalence of customary rules around water management and water control in peasant irrigation systems. This section describes two examples showing the formal implementation of “legal resources”

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by peasant organizations. The examples show how organizational capacity, demonstrations, lobbying and influence from their representatives in government spheres can turn demands by farmer organizations into official norms, to influence water control. Some difficulties and requirements for practical implementation are discussed at the end of the section.

3.4.1 Illustration1: The law on extracting aggregates

In the valleys of Cochabamba, rivers are the main source for irrigation water. Their marked seasonality defines a fairly short irrigation period and therefore they are complementary to rainfall. Peasant communities, who use rivers as their only water source, are subject to various types of adverse factors: "the capriciousness of rivers" because of their seasonality, their unpredictable flows, either as excess or shortage, resulting in increased insecurity and risks to crop production, or because of the physical security of the communities themselves. The overflow of mountain rivers, with large amounts of material, sand, stones and water, could be fatal to surrounding villages or communities if anything affects their course.

A continuous struggle for peasant communities, settled along the rivers, has been the extraction of materials such as sand, stone or gravel, often carried out illegally and sometimes legalized by concessions granted under the national mining code. This scheme granted rights to extract aggregates for construction (sand, stone, gravel). With the rapid growth of cities and peri-urban areas, demand for construction aggregates has also grown significantly and this has increasingly affected natural watercourses. The rivers of Cochabamba’s upper and lower valleys are quintessential deposits of these materials.

One example is in the "Lower Valley” of Cochabamba, communities located between the municipalities of Capinota and Parotani. The area developed very intensive agricultural activities, thanks to reliable flows from the Tapacarí and Arque rivers. This area produces large areas of vegetables very intensively, up to three harvests a year. To achieve these levels of intensity and yields, farmers use chemical fertilizers intensively, but also combine with their widespread practice of "lameo" which is to irrigate their plots with the first arriving river flow, laden with large amounts of lime and clay sediments. This practice replenishes soil nutrients and raises and consolidates these plots year after year, as they have literally been "reclaimed from the river". Farmers in the region have become experts in "building" soil terraces along the river. They annually control river flow, build retaining walls, irrigation canals and other drainage and protection works. For this purpose, they form cooperatives to organize work to build the necessary infrastructure and to coordinate distribution of the land that has been “built”. They invest their own resources, but also negotiate some support from municipalities or NGOs, for implementation.

Practicing lameo as land reclamation has been increasingly affected by aggregate extraction concessions (mainly fine material such as sand or fine gravel). This activity creates ponds in different parts of the river, and changes its path and behavior, which can flood areas that are being recovered (new areas), or undermine and collapse protection walls, or even flood agricultural areas with established populations.

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In the Upper Valley, the Jatun Pucara Mayu (Pucara river) is a seasonal river, with less water than the Lower Valley. It is located in a steeper zone, and features extraction of coarse material, gravel rather than sand. This river overlaps water from the different irrigation systems used in Punata Valley, mainly water from the three dam systems, subsurface flow (Pilayaku), basic river flow (Mitha) and flood flow (Rol and Riada). Especially water from dams is transported through the river for considerable distances, 20 to 40 km. Large discharges are released from the reservoirs so the flow arrives as quickly as possible to the irrigation area, to reduce conduction losses and prevent water theft along the river course. Aggregate extraction directly affects all these systems. In the case of reservoir systems, the ponds dug in the river course to quarry gravel cause delays and losses in water transport. Mitha and Rol systems are also affected by blocking the specific points where water is diverted, or in critical situations changing the river’s flow regime endangers protection works built along the river.

Through their representatives within the Cochabamba Departmental Federation of Irrigators (FEDECOR), and with the Federation’s support and mobilization capacity, especially irrigation organizations from these two valleys (Punata and Capinota) got the attention of regional and national political authorities. After different actions (marches, public protests, lobbying, and especially alliances with municipal governments), irrigators got a law enacted to regulate the extraction of aggregates from rivers. Law 3425 finally was enacted on June 20, 2006 and its regulations in April 2009. This law grants rural communities, irrigation organizations and communities around aggregate extraction sites, the possibility to decide over these resources. A local regulatory body was established, in which these groups have direct representation with voice and vote together with the municipal authority, with full powers to grant or extend operating licenses for aggregates extraction, revoke them, and decide about management plans for rivers and watersheds.

3.4.2 Illustration 2: Groundwater regulations in Punata

In Punata municipality, irrigators have had longtime internal conflicts over unrestricted groundwater extraction. In the 1970s, under special programs by the Ministry of Agriculture and the United Nations, the first wells were drilled. Later, since the 1990s, this process has accelerated. Data from previous studies (Delgadillo & Lazarte, 2007b; Ríos, 1999) show an increase of over 200% in the number of wells drilled in less than 15 years, increasing extracted volumes by almost 100%.

In 1998, a new water-users’ organization was formed in Punata, by groundwater-users committees (for both irrigation and drinking water). This initiative covered all Punata systems plus well systems for irrigation and drinking water throughout the Upper Valley of Cochabamba, encompassing approximately five municipalities. This organization, headed by Punata systems, pressured the municipality to implement a municipal norm to regulate groundwater exploitation, given the lack of any national norm, or norms from their own organizations, and because several conflicts had emerged. Confronted with conflicts among peasants and especially among irrigators, about a subject that was not regulated in their usos y

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costumbres, without mechanisms in public institutions to further clarify, regulate or issue a

legal opinion on this situation, the Deep Wells Association (Asociación de Pozos Profundos) had to resort to lobbying Punata Municipal Council members for approval of a municipal ordinance, which was approved in April 2005. Three important elements can be identified in this ordinance that show the complexity of regulating a “non-visible” resource such as groundwater:

First, water users saw this ordinance as a safeguard against possible interference, and therefore conflicts, among tube-well systems. Simple, concrete, measurable criteria had to be introduced to regulate groundwater extraction. Thus, for northern Punata, where there is greater groundwater potential, wells should not be drilled closer than 500 meters and, in the south, at distances of 1000 meters, because this is considered a more vulnerable area. While these limits are not based on strict hydrogeological criteria, they were proposed as a solution to avoid confrontations between water users (not just irrigators). The second important element is this municipal norm’s transitional nature. It recognizes the gap in national regulations, stating "...

until the national government by law, regulates the use of groundwater" (Gobierno Municipal

de Punata, 2005). The third important element is the role granted to this peasant organization, the Deep wells Association, "to approve" drilling activities in Punata municipality.

An interesting part of this story are the opportunities that water user organizations deploy and combine from different institutional repertoires, either from state structure or their own institutions, to reassert water control. Additionally, this could be interpreted as a concrete measure to counter Hardin’s assumption regarding the "tragedy of the commons". Enforcement of this norm is mediated by different mechanisms. On the one hand, the organization of well users found no national or other official regulations to help them sustain their own practices; they were obliged by circumstances to look outside their scope, to the municipal level, to create the necessary regulation (“legal shopping”, Benda-Beckmann et al., 1998). However, this norm requires specific control mechanisms by municipality, toward communities and toward private drilling companies, to enforce the norm. Moreover, there are no mechanisms or coercive sanctions, or the technical capacity or staff to play this monitoring role. Enforcement of this rule seems to elude municipal control; rather, this role was returned to communities and organizations, so they are in charge of "social control" to enforce this norm.

This norm may be strictly enforced or not. In many cases Punata irrigators already know this local regulation and have begun to use it, although with some "flexibility”. In many cases, this was succesful; in others it encountered severe restrictions. The Deep Wells Association has no resources (technical, financial, administrative) to regulate well-drilling. Thus, over the last decade, about 100 new wells have been drilled (Mayta, 2012). Moreover, paradoxically, according to testimony by some irrigators in Punata, the Municipality has started breaching its own ordinance: during elections, as part of their political campaigns, or recently, as part of national programs such as "Mi Agua" or "Mi Riego", municipal authorities have helped communities drill new wells, regardless of technical criteria and their own ordinance.

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Almost ten years after enactment of the municipal ordinance, the groundwater situation in Punata is becoming critical, because of water table depletion and growing conflicts between water users. During the last years, given the absence of national regulations about groundwater use and the relatively new institutional setup under the new Law on autonomies and decentralization (Ley Marco de Autonomías y Descentralización “Andrés Ibáñez”), Punata’s well organizations and other water users' organizations in Cochabamba have resumed mobilizations to exert pressure on local and regional government (“gobernación”) in order to discuss a new Departmental Law to regulate groundwater use.

3.4.3 Reflection on regulating and formalizing local practices

Both examples (the national law on aggregates and the municipal ordinance on deep wells) show the importance of local organizations and their experiences with certain problems that pose risks or threaten communities’ water control as a basis for people to resort to different strategies to promote building their own institutions. In these processes, the examples show that formalizing local practices or “putting norms on paper” is neither the only nor the most important requirement for institutional development. What these examples show is the need to consider the multi-dimensionality of the problems that must be solved to support everyday water control practice.

Part of the political dimension, institutional development and locally managed rules aim to effectively or sometimes symbolically control people’s behavior. In Punata’s groundwater case, promoting this protective norm has meant searching for a different domain aside of the

usos y costumbres, that will enable some preventive measures that cannot be easily

manipulated. Further, this norm affects both irrigators and urban populations. Therefore, the most logical way to tackle the problem seemed to be a municipal ordinance. This meant that the rules governing collective resource use were transferred out of the scope of customary norms (usos y costumbres) and put under official (formalized) state regulations.

In the organizational domain, to fully implement customary norms and practices through state institutions, these institutions should have operational, administrative and technical mechanisms to enforce norms. Local organizations were urged to use their own representation and social control mechanisms to enforce both norms. However, local organizations lack such mechanisms and capabilities, despite their organizational and mobilization strengths.

These two cases show that written rules "normalized" in state structure, though generated from people’s practical experiences, "from within", have no guarantee that they will be fully implemented. The reason seems to be the historical separation and mutual denial between local institutions and state institutions. This has created parallel structures with different logics, codes, practices and purposes, leaving large gaps (in both state and customary frameworks) when implementing the norms. In these two cases, implementation was taken away from local organizations or institutions, into the realm of state bureaucracy with all its weaknesses.

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In Bolivia, institutionalizing water governance by the state has always proven to be very fragile. Local institutions’ recognition and progressive incursion into state institutions is assumed to mean an important step forward. However, it is difficult to predict how long it can take to make the two frameworks compatible and achieve results. An immediate consequence of "institutionalizing" local norms and practices in the state is potentially many procedural and public management errors, bureaucracy, corruption, or simply that the rules and public management procedures are ignored locally because few understand and apply the rule, or because some begin to use "flexible" and sometimes discretionary practices to manage public bodies and resources.

Another drawback of explicitly recognizing customary law is the difficulty or impossibility of putting it into practice with all its implicit elements (which come from daily practice), because local norms tend to focus on very specific, practical problems (and contexts). Therefore, they require very detailed regulation of all administrative, legal, financial and technical backups for their actual implementation. In Bolivia, these backups or institutional mechanisms to enforce formal regulations are being (re) constructed or in many situations they are simply absent, resulting in a very unstable, changing institutional situation (see also Del Callejo, 2010; Rocha et al., 2016; Seemann, 2014).

3.5 Concluding remarks: Collective action and institutional development of the