Rainwater Runoff - a Water Source or a Source for Trouble?
"Agamit"- "The Sea of Galilee" Journal, Vol. 153
Tzvi Levinson, Tal Tzafrir - Advocates
The natural cycle of water is reflected in Israeli legislation as if in a broken mirror. This cycle has been broken apart so that different facets of it are regulated in separate pieces of legislation that are, at times, uncoordinated. The purpose of the following is to describe a(nother) “hole” in Israeli water legislation through which water leak from the nation’s water bank. The term “surface runoff” (or “surface water” in the words of the Drainage and Protection Against Floods Act 1957) refers to water that accumulate on the ground, usually as a result of rain. This state of the water is temporary for gravity causes the water to permeate the underground, or to flood the lowest place available to them. It should be noted that water that accumulate on the ground as a result of an underground outflow -- springs and streams -- are not, necessarily, considered also as “surface runoff”. The independent existence of the Streams and Springs Authorities Act 1965 is testimony enough. The Drainage and Protection Against Floods Act 1957 (hereinafter the Drainage Act) outlines the primary framework regulating surface runoff. According to the Drainage Act “drainage” is: “any action intended for the concentration, collection, conveyance or removal of surface or other water that harm or may harm agriculture, public health, development of the land or the maintenance of regular services in the country, including drying of swamps and protection against floods and their prevention, but excluding treatment of wastewater”. We would like to draw attention to the premise of this definition that surface runoff is a nuisance, harmful (potentially, if not necessarily in fact) to various human activities. From this viewpoint is also derived the purpose of drainage activities which is to prevent this nuisance, or, more exactly, the danger of its harm. For the regular drainage of the land “Drainage Authorities” were set up whose function is to plan and construct “Drainage Projects” in areas designated as “Drainage Zones”. Let us also note that the Drainage Act was enacted two years before the Water Act 1959; chief in the Israeli water legislation. In the following we will describe with the relations between the Drainage Act and the Water Act in terms of surface runoff availability and their quality. This will serve us to uncover a problem in the conceptual approach of the Drainage Act as opposed to the conceptual approach of the Water Act. First, surface runoff availability or surface runoff as a water source: The Water Act explicitly enumerates “drainage water” among the nation’s sources of water (§2, concluding section). The Drainage Act, in contrast, lacks any regard to surface runoff as water that are part of the national water bank. For example, a “Drainage Project” is not required to serve also as a “Water Project” and is not required to integrate in the water supply array (whether local, regional or national). Likewise, the Drainage Act does not require that surface runoff be collected and be available to the national water bank. To solve this discrepancy we propose to read the definition of “Drainage” as setting priorities between actions -- first concentrate, then collect, convey and only then -- if none of the above is practicable -- remove, surface runoff. Second, surface runoff quality: The Drainage Act itself remains quiet, lacking any reference as regards the quality of surface runoff; most notably as regards pollutants that are carried by it or absorbed in it. In the lack of any guidance in this regard the “Drainage Authority” retains unchecked consideration whether to include in its “Drainage Project” means to ensure the quality of the surface runoff captured by it, and the extent to which such means be included. It must be noted that other authorities (e.g.: the Public Works Department who constructs roads, or “Licensing Authorities” who regulate construction works) are also exempt from installing means to ensure a certain quality in the surface runoff resulting from their activities. Instead, §20M of the Water Act authorizes the Environment Minister to fill this gap by: “setting in regulations requirements regarding the quality of water for different purposes, including flood water”. The Environment Minister has yet to make use of this authority invested in him. In any case, this section does not, however, determine, nor allow for the determination of, who it is that will be responsible for the implementation of such requirements. In other words: the Environment Minister is authorized to determine that a certain quality must be maintained in water (surface runoff) if they are to be put to a known usage, but is not authorized to order a certain person to bring these same water to this or other quality. Two additional remarks are in order in this account: First, “flood water” cannot be considered a (water) usage, thus casting doubt over the Minister authority to set quality standards as regards such water. Second, it is rather difficult to see how exactly may the quality of “flood water” be determined before they are put to their “use”. To solve this discrepancy we propose to interpret the “harm” in surface runoff (to agriculture, or to public health, for example) as rising not only from the flood event itself but also in the impact the quality of such water may have on soil and on groundwater. Under this interpretation there is a duty on “Drainage Authorities” to bring surface runoff to such a quality as will prevent the occurrence of such damages. Our third critique touches on the relation between surface runoff and physical planning. While surface runoff, as understood here, are water that flow on the ground, physical planning serves to change this surface of the land. In addition, vacant land may absorb (by permeation) surface runoff, and provide space for the construction of a “Drainage Project” (the physical manifestation of drainage activities) while built land, on the other hand, is both a source for surface runoff (and polluted runoff, at that) and a consumer of the services of a “Drainage Project” (wishing to avoid the damages of flooding). Obvious linkages exist therefore between drainage activities and physical planning, and several works were already published in Israel on “water sensitive” urban planning. Sections 23 and 24 form the main interface between a “Drainage Project” and the planning and building system of laws: a plan for a “Drainage Project” is presented to the Regional Planning and Building Commission for its approval. When approved a “Drainage Project” plan is superior to “any town building plan”. A complementing connection does not, however, exist. For example, a new town building plan that changes the surface (typically, enlarging the runoff contributing areas and reducing runoff absorbing areas) is not required to show how it relates to a “Drainage Project” plan; specifically, whether the “Drainage Project” will be capable of handling the proposed changes in circumstances. Special interest in this regard arouse the areas that comprise flood plains. This is land that does not form a part of the “Drainage Project” since the “Drainage Authority” does not need to occupy it for the purposes of the maintenance of the “Drainage Project” nor need to hold works in it. A “Drainage Project” plan therefore cannot prohibit construction in these areas as such. The only protection from interference the Drainage Act affords such land is to designate it as a “Protective Strip”. According to §5 of the Drainage Act: “a person shall not erect a building and shall not construct an installation in an artery, above it or in the protective strip, shall not cultivate the ground there in any manner whatsoever, shall not graze and shall not herd sheep, cattle or other livestock through it, without a permit from the water commissioner and according to the permit’s conditions”. Building in the “Protective Strip”, therefore, requires both a Building Permit (as per the Planning and Building Act 1965) and the Water Commissioner’s permit. Obviously, this type of solution is cumbersome, to say the least. What all the above-surveyed deficiencies share in common is a schism of social-economic aspects of the same “thing” -- water. These aspects are regarded as competing between them; so much so that an independent authority has been trusted with the task of properly representing each and every one of them. Surface runoff is indeed both a water source as well as a source for trouble (in the form of floods), yet these are but two facets of the same phenomenon itself. The several pieces of legislation regulating surface runoff must be adapted to reflect this basic unity and reconcile all its aspects within a single framework.