Legal and Regulatory Policy Frameworks | Resilient Watersheds Toolbox

Understanding whether existing legal and regulatory frameworks are conducive to NbS adoption and scale up is important when determining the institutional barriers feasibility of your Watershed Investment Program (WIP). These will not determine whether the WIP is feasible but rather shed light on what needs to be overcome or addressed to achieve it (e.g., energy, champions, resources). This will depend on the context in which you set your WIP. The key to this process is understanding who has the mandate to implement the WIP. Once this question is answered, you can assess whether the WIP is supported by:

An enabling environment (policy)
Knowledge (benefits of ecological infrastructure)
Practice (supportive stakeholders who won’t get in your way)

The NbS space has multiple environmental, water sector, infrastructure, municipal, land and catchment dimensions. The overlapping mandates from these different spaces, and the multiple actors involved, makes regulatory and policy fragmentation inevitable. Conducting a Legal and Regulatory Mapping Process can help you understand how to overcome the fragmentation – or how your WIP could bridge some of these gaps.

A legal and regulatory policy evaluation is best done once you have identified your potential NbS portfolio and have mapped and analysed your stakeholders (Stakeholder Mapping Deep Dive), particularly government institutions.

STEP 1: IDENTIFY the policies and legislation relevant to your portfolio of interventions and downstream beneficiaries.

This is usually started by simple desk research to identify policies and legal instruments at the national, regional, local, and/or municipal levels. When identifying the policies and legislation relevant to your WIP, it is important to remember that contextual mapping is key. Identify those water sector policies relevant to your portfolio of interventions and/or geographical landscape, rather than the whole water sector. This latter method will not be time efficient, and your results will not be focused. You also need to consider policies and legislation that might help or hinder upstream and downstream stakeholders from supporting the WIP. Desk research should be validated with stakeholders who can shed light on the barriers to implementing policies or remaining challenges still to be addressed.

STEP 2: ASSESS and MAP the policies and legislation relevant to your portfolio of interventions.

Analyse your data to see which policies are most conducive to your portfolio of interventions. For example, if there are policies with the same functionality at different government levels, assess which would have the most impact on your WIP, e.g., perhaps a state’s interpretation of national policy “X”, is more important than the language in national policy “X”. Moreover, if certain instruments are not legally binding (e.g., a basin management strategy), question how this could hinder or help the implementation of your project.

STEP 3: CONDUCT a capacity needs analysis.

Having identified the relevant regulatory frameworks for your portfolio of NbS interventions, the next step is to conduct a capacity needs analysis to discern which institutions are responsible for carrying out these policies, and whether they have the capacity to do so.

Be sure to determine the responsibilities and mandates that institutions have in a desired situation (de jure) versus those they have in the existing situation (de facto). Identify which active government institutions in your affected water basin have the mandate to carry out and enforce the policy functions. Identify what, in theory, their key activities linked to this are, and what, in practice, they can do. For example, in Cape Town, South Africa, Catchment Management Authorities have the mandate to manage and restore catchments using funds raised from water tariffs. In practice, however, they do not have adequate resources and capacity to do this, and consequently these activities are not undertaken by government institutions.

If there are multiple stakeholders with the same mandate, assess which has executive authority.

STEP 4: ANALYSE your enabling environment.

Analyse which institutions have the motivation and capacity to implement your WIP. Compare institutions’ mandates and capacities and rank your identified institutions by who you believe is most critical to the success of your interventions.

To keep engagement manageable, it’s helpful to narrow your selection down to the top 1-3 actors essential to the delivery of your WIP. Consider the following questions to help you with this:

Are there any watershed functions necessary for your portfolio of interventions (e.g., catchment management, land access) not being addressed by government institutions?
Are there any institutions sharing a mandate whose relationship isn’t working?
Are there any relationships that you may need to bypass or build to achieve your goal?
Are there any legal conflicts or tensions preventing you from intervening?
Are downstream beneficiaries, upstream actors and implementors of your WIP represented in the institutions identified?

Resources

Global

Report

Legal and Regulatory Policy Frameworks Mapping Deep Dive

Just Out Of Reach - 2 // View from a high bank overlooking a deep-water pool where salmon would congregate along the river’s edge. It was a tempting fishing spot for the brown bear, although catching a fish in deep water proved difficult. This was taken in Katmai National Park, Alaska. — © Jennifer Webber/TNC Photo Contest 2022