Legal Problems of Desalinization of Seawater in Israel

In June 2001 the Israeli Knesset voted to establish an investigative parliamentary commission dealing with drinking water. In 1959 the Israeli Water Law was enacted and remains today the broad legal framework dealing with drinking water and the single piece of legislation delineating water law generally, a comprehensive water policy statement. In recent years, three governmental resolutions were passed seeking to solve the perennial shortage of water in Israel through the desalinization of seawater and salt water. Despite the salinization of seawater, seawater remains water nonetheless and thus comprises a part of the national water balance under the authority of both the Ministry of National Infrastructure and the Water Commission, which together possess the authority to plan and develop drinking water resources. However, seawater extraction and management are not currently delineated in Israeli law due to the newness of the desalinization issue. Furthermore, the commonly-held view in the Israeli legal community is that seawater is not included in the term “water resources” as defined by the Israeli Water Law of 1959, and therefore in the present situation such waters cannot be well-regulated, managed, or supervised under the Water Law. This article suggests a broad interpretation of the term “water resources” based on the geographic location of the water and not on the type of water or its quality. Based on this interpretation, seawater may be considered to be the same – as a legal matter -- as other water resources located within the geographic area of the State of Israel. That is, despite the fact that the word seawater does not appear explicitly as a “water resource” in the Water Law, seawater would necessarily become a “water resource” to the extent it was pumped onto the geographic area comprising the State of Israel, permitting authority to be exercised over such water without necessitating a change in the Water Law. The means of desalinating seawater is defined in the Law on National Infrastructure Planning and Construction of 1965, with authority vested in a Commission created by and bearing the same name as the law creating it and possessing a set of abbreviated regulatory procedures. An additional body possessing regulatory authority over seawater desalinization is the Coastal Waters Commission. Due to the potential environmental consequences of the desalinization of seawater, confirmation of the project depends on the submission of a review of environmental consequences under Israeli regulations requiring review of environmental impacts (promulgated in 2003). The government is obligated to protect the supply of raw materials for the desalinization of seawater, mandating the imposition of punitive sanctions on those entities that have polluted the sea. The government is further obligated to ensure sufficient quality of desalinated water intended for use as drinking water, but also constituting part of the reserves of raw materials in Israel, and may regulate the conduct of an operator of a desalinization plant. Similarly, the responsibility of Mediterranean nations for raw materials (seawater that is not polluted) may perhaps be tested in the case of cross-border sea pollution. In the course of the desalinization process, operators of desalinization facilities are subject to the complex web of laws, beginning with the legislation dealing with raw materials, gas safety, nuisance avoidance (noise, odor, and air pollution), and avoidance of water pollution. The operator of a desalination facility, to the extent that that operator is a supplier of water in the broad sense, falls under the Regulations of the Public Health (Sanitation of Drinking Water) of 1974 that set forth detailed water quality requirements for drinking water, the duty to disinfect the water supply, and numerous additional public health requirements. One of the environmental problems with which desalinization facilities will have to come to terms is the creation of hazardous waste discharged in the extraction and desalinization process, and the used membranes to be replaced from time to time due to large amounts of liquids passing through them. The reasonable solution is to discharge these into the sea, in accordance with the Law on the Prevention of Sea Pollution From Land Sources of 1988 and the accompanying regulations promulgated in 1990. The used membranes, due to their smaller quantity, will be transported to industrial waste treatment and disposal facilities, where they will be treated according to business licensing regulations governing hazardous wastes promulgated in 1990. Successful pursuit of seawater desalinization depends on navigation of the complex web of permits, and licenses in Israel: confirmation of the plan for operating a drinking water reservoir requires obtaining confirmation under Regulations of the Public Health (Drinking Water Reservoir System) of 1983; a construction permit under Planning and Construction (Application for Permit, Conditions and Fees) of 1970; confirmation for the building and operation of gas facilities under the Gas Law (Safety and Licensing) of 1989; as well as a host of other laws and regulations (set forth in the full article).

In the present article we clarify the legal situation in the field of water desalination. In the second  we will review the legal aspects involved in environmental planning stage and operation of a desalination plant, with reference to the facility as a water desalination plant that provides consumer product, with all that implies. Finally, we will cover the full range of permits and licenses that are need for a desalination plant during the construction and the operation.