152 20 WATER LAW : TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS
AN ANALYTICAL FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO
FRESHWATER ECOSYSTEMS
HUGO TREMBLAY 1
`An ecosystem is an entirely human-defined construct' 2
1 INTRODUCTION
Freshwater ecosystems are essential to life.3 They
support crucial environmental processes and provide
fundamental services and benefits to people.4 Services
and benefits include natural resources provision,
water purification as well as protection from hydro-
logical and climatic variations. Fundamental ecosystem
processes generate services and benefits through the
regulation of food web dynamics, energy distribution,
carbon fixation, nutrient transport and sediment
processes.5 Without freshwater ecosystem processes
and services, human development is unsustainable.
Freshwater ecosystems face serious threats.6 Freshwater
ecosystem integrity is degraded at an alarming rate
through extensive habitat deterioration caused by sedi-
ment loading and organic pollution from land-use acti-
vities, toxic contaminants from municipal and indus-
trial sources, stream fragmentation and flow regulation
by dams, channelization and dredging projects, as well
as interactions with increasing numbers of exotic
species.7 Owing to loss of habitat and biodiversity,
freshwater ecosystems are in far worse condition than
coastal, grassland, forest or other terrestrial ecosys-
tems.8 Current extinction rate for freshwater fauna is
estimated to be 1000 times higher than background
rate, and the future extinction rate is expected to be five
times higher for freshwater fauna than for terrestrial
species. Life sustaining processes and services provided
by freshwater ecosystems may be critically impaired.
As a result, legal protection of freshwater ecosystems
is essential. Fragmented and sectoral water manage-
1 I thank Professor Patricia Wouters and Andrew Allan for their guid-
ance and insightful comments in the preparation of this article. Any
mistake or omission is mine alone. Contact: h.tremblay@dundee.ac.uk.
2 M Dobson, C Frid Ecology of Aquatic Systems (2nd edn Oxford
University Press Oxford 2009) 277.
3 Millennium Ecosystem Assessment Ecosystems and Human Well-
being: Wetlands and Water (World Resources Institute Washington
2005).
4 C Revenga `Conditions and Trends of Freshwater Ecosystems and
the Challenges to Meet Human Water Needs' in C King et al (eds) Water
and Ecosystems: Managing Water in Diverse Ecosystems to Ensure
Human Well-being (United Nations University Hamilton 2007) 1.
5 C Holmlund, M Hammer `Ecosystem Services Generated by Fish
Populations' (1999) 29 Ecological Economics 253 at 254±55, 263±64.
6 S Carpenter et al `Global Change and Freshwater Ecosystems' (1992)
23 Annual Review of Ecology and Systematics 119.
7 A Ricciardi, J Rasmussen `Extinction Rates of North American
Freshwater Fauna' (1999) 13 Conservation Biology 1220.
8 P Vitousek et al `Human Domination of Earth's Ecosystems' (1997)
277 Science 494 at 497.
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ment frameworks inevitably lead to environmental
degradation. Water resources require holistic man-
agement encompassing all ecosystem components
linked through the hydrological cycle and other
ecological connections.9 The notion of freshwater
ecosystem is the most appropriate conceptual basis
for water management because it comprehensively
reflects and integrates anthropogenic activities affect-
ing freshwater-related natural resources. To achieve
sustainable development, the freshwater ecosystem
concept must govern and structure water resources
management frameworks.
However, a clear and operational definition of `fresh-
water ecosystem' for the protection and management
of water-related natural resources has yet to emerge.
The general concept of ecosystem is not considered to
have yielded coherent and robust norms for legal
protection within states or in international environ-
mental law.10 The ecosystem concept's inadequacy in
underpinning operational frameworks to regulate
anthropogenic activities stems from the difficulty in
reducing the concept to a set of generalized principles,
as its scientific basis remains inconsistent and bereft of
widespread consensual understanding.11 Moreover,
when applied to water-related natural resources, the
content of the ecosystem concept is blurred by a
variety of overlapping notions such as aquatic envir-
onment or water resources-dependent habitat that
hinder consistent analytical focus.
In this context, the object of this article is to review the
various concepts and notions related to the freshwater
ecosystem construct in order to develop an opera-
tional definition that can be used as a basis for the
analytical study and assessment of legal frameworks
applicable to water resources management and pro-
tection. The article first focuses on legal concepts
developed in international and national law to address
freshwater ecosystems (2). Then, a literature review in
natural science helps solidify the foundations of the
analytical framework applicable to the legal protection
and management of freshwater ecosystems (3).
9 M Falkenmark Water Management and Ecosystem: Living with
Change TEC Background Paper No 9 (Global Water Partnership
Stockholm 2003) (identified as a catchment-based ecosystem approach
to management).
10 D Tarlock `Ecosystems' in D Bodansky, J BrunneÂe and E Hey (eds)
The Oxford Handbook of International Environmental Law (Oxford
University Press Oxford 2007) 574 at 576.
11 ibid 580.
 TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS : 20 WATER LAW
2 LEGAL CONCEPTS RELATED TO FRESHWATER
ECOSYSTEMS
This section provides a brief overview of legal
concepts and notions that could offer a basis for the
study of legal frameworks applicable to freshwater
ecosystems. The extent, normative content and in-
tended effects of legal rules and regimes examined are
excluded from the discussion, as the analysis only aims
at delineating the scope and determining the content
of the freshwater ecosystem concept. Relevant notions
are outlined in international law and supranational law
(2.1) as well as in the national regimes of selected
jurisdictions (2.2) to identify the principal components
of the freshwater ecosystem concept within the legal
domain (2.3).
2.1 International and supranational law
International law and supranational law offer various
references to a notion of ecosystem specifically relevant
to freshwater resources.12 Some legal regimes applic-
able to water-related resources develop detailed equi-
valents to the freshwater ecosystem concept while
others provide synthetic definitions or simply refer to
such notions without substantiating them. Interna-
tional environmental law further clarifies the general
notion of ecosystem and interrelated or overlapping
concepts such as biodiversity. This sub-section first
reviews international law and then supranational law.
Multilateral treaties within the conventional scope of
international water law contextualize the notion of
aquatic ecosystem. The 1992 Helsinki Convention pro-
vides that appropriate measures must be taken to
ensure the conservation and restoration of ecosys-
tems.13 The 1999 Protocol on Water and Health to the
Helsinki Convention refers more precisely to water
ecosystems.14 International watercourse conventions
that are informed by the Helsinki Convention specifi-
cally aim at protecting and improving aquatic ecosys-
tem quality.15 None of these instruments formally
defines the various notions referred to. However, guide-
12 In international law, see S McCaffrey The Law of International
Watercourses (2nd edn Oxford University Press Oxford 2007) 446±62,
O McIntyre Environmental Protection of International Watercourses
under International Law (Ashgate Publishing Aldershot 2007) 286±313,
A Rieu-Clarke International Law and Sustainable Development: Lessons
from the Law of International Watercourses (IWA Publishing London
2004) 120±31, J BrunneÂe, S Toope `Environmental Security and Fresh-
water Resources: Ecosystem Regime Building' (1997) 91 American
Journal of International Law 26 and D Tarlock `International Water Law
and the Protection of River Ecosystem Integrity' (1996) 10 (2) Brigham
Young University Journal of Public Law 181.
13 Convention on the Protection and Use of Transboundary Water-
courses and International Lakes (Helsinki Convention) arts 2(2)(d),
3(1)(d) and 3(1)(i) (17 March 1992) in (1992) 31 International Legal
Materials 1312.
14 Protocol on Water and Health to the 1992 Helsinki Convention
arts 1, 2(10), 4(1), 4(2)(c), 5(j) and 6(1) in fine (17 June 1999) UN Doc
MP.WAT/2000/1.
15 International Agreement on the Scheldt preamble, art 3(2)(b) (3
December 2002) Ghent, Belgium reproduced in (2005) 2351 UN Treaty
Series 42199 at 36. Further see P Wouters, S Vinogradov `Analysing the
ECE Water Convention: What Lessons for the Regional Management of
Transboundary Water Resources?' in O Stokke, O Thommessen (eds)
Yearbook of International Cooperation on Environment and Develop-
ment (Earthscan London 2004) 55 at 59.
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153
lines substantiating the Helsinki Convention detail the
concept of aquatic ecosystem, although they also em-
phasize the challenges in determining the concept's
exact substance.16
Other notions related to the freshwater ecosystem con-
cept have particular relevance in international water
law although they lack clear articulation. The 1997
United Nations Watercourses Convention refers to the
ecosystem of international watercourses without de-
fining the concept.17 In this respect, the International
Law Commission differentiates the watercourse envir-
onment, that includes elements with negligible bear-
ing on watercourse protection and preservation, from
the watercourse ecosystem, that is more precisely
delineated and refers to ecological units consisting of
interdependent living and non-living components
functioning as a community.18 Despite the interpreta-
tive guidance they provide, the comments from the
International Law Commission foment ambiguities on
the scope of the watercourse ecosystem concept
which appears both spatially limited to watercourses
and fully extended to entire watersheds.
Agreements for the management of specific interna-
tional basins provide a clearer focus on notions related
to the freshwater ecosystem concept. For example, the
international legal regime for the North American Great
Lakes orients freshwater resources management to-
wards the ecosystem approach.19 Under the 1978 Great
Lakes Water Quality Agreement, the notion of basin
ecosystem refers to the interacting components of air,
land, water and living organisms, including humans,
within the drainage basin of the St Lawrence River.20
More recently, the 2005 Great Lakes±St Lawrence Agree-
ment fosters the ecosystem approach by relying on a
similar definition to protect basin ecosystem integrity
against water diversions and withdrawals.21
16 Guidelines on the Ecosystem Approach in Water Management
UNECE Water Series No 1 (Pt 1) UN Doc ECE/ENVWA/31 1993 at 1±2 and
Report of the First Meeting of the Parties to the Convention on the
Protection and Use of Transboundary Watercourses and International
Lakes (12 August 1997) UN Doc ECE/MP.WAT/2 Annex VIII 43.
17 Convention on the Law of the Non-navigational Uses of Interna-
tional Watercourses (Watercourse Convention) arts 2, 20 and 22 (21
May 1997) New York USA (not in force) reproduced in (1997) 36
International Legal Materials 700.
18 International Law Commission Report of the International Law
Commission on the Work of its 46th session (2 May±22 July 1994) UN
Doc A/49/10 reprinted in [1994] II 2 Yearbook of the International Law
Commission 1 at 118.
19 L Dworsky `Ecosystem Management: Great Lakes Perspectives'
(1993) 33 Natural Resources Journal 347 at 349±50.
20 Agreement on the Great Lakes Water Quality (Great Lakes Water
Quality Agreement) art I(g) (22 November 1978) Ottawa Canada repro-
duced in (1979) 1153 UN Treaty Series 18177 at 187. The purpose of the
Agreement is to restore and maintain the chemical, physical and
biological integrity of the waters of the Great Lakes Basin Ecosystem.
Of note is the fact that art 3(a) of the Specific Objectives Supplement to
annex I details in part the desired ecological status for Lake Superior,
which should be maintained as a balanced and stable oligotrophic
ecosystem with lake trout as the top aquatic predator of a cold-water
community and the Pontoporeia hoyi as a key organism in a food chain.
21 Great Lakes±St Lawrence River Basin Sustainable Water Resources
Agreement (13 December 2005) available at http://www.cglg.org/
projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_
Sustainable_Water_Resources_Agreement.pdf (last accessed 11 January
2010) and also `Great Lakes±St Lawrence River Basin Water Resources
Compact' US Public Law 110±342 (122 Stat 3739).
154 20 WATER LAW : TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS
Another example is provided by the 2003 Convention
on the Management of Lake Tanganyika, which aims at
achieving a high level of protection for the whole or
any component of the aquatic environment of the lake
and related ecosystems.22 Although `aquatic environ-
ment' is not formally defined as an autonomous con-
cept, the Convention provides that an ecosystem is a
dynamic complex of plant, animal and micro-organism
communities and their non-living environment inter-
acting as a functional unit.23 Numerous overlaps and
interrelations between the definitions of ecosystem,
lake basin, basin, environment, natural resources and
biological diversity maximize the semantic expanse of
the Lake Tanganyika Convention but also blur the
exact content and extent of these notions as indepen-
dent concepts.24
Outside the conventional scope of water law, some
treaties contribute to the elaboration of the ecosystem
concept in international law.25 In particular, the defi-
nition of ecosystem contained in the 1992 Convention
on Biological Diversity has served as a model for sub-
sequent international treaties managing freshwater-
related resources.26 Parties to the Convention on Bio-
diversity must notably promote the protection and res-
toration of ecosystems and natural habitats, and pro-
mote the maintenance of viable populations of species
in natural surroundings through protected areas.27 The
notion of biological diversity is also particularly relevant,
as it refers to the variability among living organisms
from all sources, including marine and other aquatic
ecosystems as well as the ecological complexes of
which they are part.28 In this context, various guide-
lines and resolutions of the parties to the Convention
have led to a conceptual outline of the ecosystem ap-
proach that emphasizes the importance of the con-
servation and sustainable use of inland water eco-
systems through water management frameworks.29
22 Convention on the Sustainable Management of Lake Tanganyika
(Lake Tanganyika Convention) arts 1(13), 3, 8(3), 10(1)(a) (12 June 2003)
Dar es Salaam Tanzania reproduced in (2005) 2338 UN Treaty Series
41902 at 43. Although the Convention is in force, only two riparian
states are parties.
23 ibid art 1(8).
24 See generally ibid art 1.
25 For example UN Framework Convention on Climate Change (9
May 1992) New York USA reproduced in (1993) 1771 UN Treaty Series
30822 at 107 (art 1(1): ecosystems can be natural or managed);
Convention on the Conservation of Antarctic Marine Living Resources
(20 May 1980) Canberra Australia reproduced in (1983) 1329 UN Treaty
Series 22301 at 47 (art I: ecosystem not required to function as one
unit); Convention on the Conservation of Migratory Species of Wild
Animals (23 June 1979) Bonn Germany reproduced in (1991) 1651 UN
Treaty Series 28395 at 356 (art 1(c)(12): a species is a component of
ecosystems); World Heritage Committee Operational Guidelines for
the Implementation of the World Heritage Convention (UNESCO Paris
2008) (ecosystems identified through key ecological and biological
processes and aspects as well as representative habitats for maintain-
ing diverse fauna and flora).
26 For example, the definition of ecosystem provided by art 2(7) of
the Convention on Biological Diversity (Convention on Biodiversity) (5
January 1992) Rio de Janeiro Brazil reproduced in (1993) 1760 UN Treaty
Series 30619 at 143 is identical to the one provided by Lake Tanganyika
Convention art 1(8) (n 22).
27 ibid art 8.
28 ibid.
29 `Ecosystem Approach', decision V/3 annex III 5th Meeting of the
Conference of the Parties to the Convention on Biological Diversity
(15±26 May 2000) Nairobi Kenya UN Doc UNEP/CBD/COP/5/23 at 104
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Also of particular relevance, the 1971 Ramsar Conven-
tion aims at protecting listed wetlands of international
importance.30 Through various guidelines and resolu-
tions of the parties to the Ramsar Convention, focus
has evolved toward the protection of wetland ecosys-
tems and related water flows that are considered both
critically important for and highly sensitive to global
hydrologic cycle dynamics.31 This process has led to
the harmonization of the dated terminology contained
in the Ramsar Convention with a more recent defini-
tion provided by the Millennium Ecosystem Assess-
ment, according to which ecosystems are complexes
of living communities including human communities
and non-living ecosystem components interacting
through ecological processes as a functional unit which
provides, inter alia, a variety of ecosystem services as
benefits to people.32
Finally, numerous `soft law' instruments, declarations
and policy guidelines provide additional details sub-
stantiating the freshwater ecosystem concept in the
domain of international law.33 For example, Agenda 21
sets preservation objectives for the integrated protec-
tion of freshwater resources, water quality and aquatic
ecosystems that aim to maintain ecosystem integrity
and effectively prevent any form of degradation on
drainage basins.34 According to the Berlin Rules, states
should take all appropriate measures to protect the
ecological integrity necessary to sustain water depen-
dent ecosystems.35 Ecological integrity means the
notably emphasizes adaptive management and makes an important
distinction between ecosystem and habitat, biome or ecological zone.
Of note is the fact that the `one size fits all' guidelines recommended
therein are rebuked in `Ecosystem Approach' decision IX 9th Meeting
of the Conference of the Parties to the Convention on Biodiversity
(19±30 May 2008) Bonn Germany UN Doc UNEP/CBD/COP/DEC/IX/7.
See also Biological diversity of inland water ecosystems decision VII/4
7th Meeting of the Conference of the Parties to the Convention on
Biodiversity (9±20 and 27 February 2004) Kuala Lumpur Indonesia UN
Doc UNEP/CBD/COP/DEC/VII/4.
30 Convention on Wetlands of International Importance Especially
as Waterfowl Habitat (Ramsar Convention) arts 1±4 (2 February 1971)
Ramsar Iran reproduced in (1976) 996 UN Treaty Series 14583 245.
31 `An Integrated Framework for the Ramsar Convention's Water-
Related Guidance' resolution IX.1 annex C 9th Meeting of the Confer-
ence of the Parties to the Convention on Wetlands (8±15 November
2005) Kampala Uganda and `Guidelines for Integrating Wetland
Conservation and Wise use into River Basin Management' resolution
VII.18 7th Meeting of the Conference of the Contracting Parties to the
Convention on Wetlands (10±18 May 1999) San Jose Costa Rica.
32 `A Conceptual Framework for the Wise Use of Wetlands and the
Maintenance of their Ecological Character' resolution IX.1 Annex A 9th
Meeting of the Conference of the Parties to the Convention on
Wetlands (8±15 November 2005) Kampala Uganda and Millennium
Ecosystem Assessment Ecosystems and Human Well-being: A Frame-
work for Assessment (Island Press Washington 2003) 49±70.
33 `Water Ecosystems: Features, Functions and the Need for a Holistic
Approach to Ecosystem Protection and Restoration' (8 October 2004)
UN Doc MP.WAT/SEM.4/2004/4 at 13±15 (in this document, the notion
of water-related ecosystems encompasses forests and wetlands such
as marches, fens and bogs, but explicitly excludes rivers, lakes and
groundwater bodies).
34 Agenda 21 x18.38(a) and x18.39(g) reproduced in Annex II vol I of
Report of the UN Conference on Environment and Development (14
June 1992) UN Doc A./CONF.151/26/Rev.1 (United Nations New York
1993) 288±89 (Agenda 21).
35 International Law Association `Berlin Rules on Water Resources' in
Report of the Seventy-First Conference (Berlin) (ILA London 2005) art
22 at 27±28. See also S Bogdanovic et al `ILA Berlin Conference 2004 ±
Water Resources Committee Report Dissenting Opinion' available at
http://www.internationalwaterlaw.org/documents/intldocs/ila_berlin_
rules_dissent.html (last accessed 11 January 2010).
 TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS : 20 WATER LAW
natural condition of waters and other resources suffi-
cient to assure the biological, chemical and physical
integrity of all surface waters and groundwater, of the
lands and subsurface geological formations connected
to those waters and of the atmosphere related to those
waters and lands.36
Astride international and national orders, supranational
law details a concept equivalent to freshwater ecosys-
tem. The 2000 European Water Framework Directive
relies on a notion of ecological status referring to
aquatic ecosystems.37 The primary purpose of the
Water Framework Directive is to protect and enhance
the status of aquatic ecosystems as well as wetlands
directly depending on aquatic ecosystems and terres-
trial ecosystems with regard to their water needs.38
Although aquatic ecosystems are not formally defined,
the notion of ecological status expresses the quality of
the structure and functioning of aquatic ecosystems
associated with surface waters.39 Ecological status for
all standing or flowing waters on the surface of the
land is determined through series of detailed criteria
related to biological elements, such as the composition
and abundance of aquatic flora, to hydro-morphologi-
cal elements, such as the dynamics of water flow and
the structure of the riparian zone, as well as to chemical
and physico-chemical elements, such as thermal con-
ditions and polluting substances.40
2.2 National law
National water law reflects specificities in climate and
hydrological variability that have a crucial impact on
freshwater ecosystems. As a result, legal regimes from
various jurisdictions emphasize different aspects of the
protection and management of freshwater ecosystems.
Through these differences, forays in selected national
water laws further detail the scope and content of the
freshwater ecosystem concept in the legal domain.41
36 ibid art 3(1) and 3(6).
37 Directive 2000/60/EC of the European Parliament and of the
Council of 23 October 2000 Establishing a Framework for Community
Action in the Field of Water Policy [2000] OJ L327 1 (Water Framework
Directive). The notion of chemical status also plays a significant role in
the protection regime set up by the Water Framework Directive, but it
can be construed as a subset of ecological status. On characterization
of the Water Framework Directive as supranational law, see P Kapteyn,
P van Themaat and L Gormley Introduction for the Law of the European
Communities: From Maastricht to Amsterdam (3rd edn Kluwer Law
International London 1998) 77±89 and S Prechal Directives in EC Law
(Oxford University Press Oxford 2005).
38 Water Framework Directive (n 37) art 1(a).
39 ibid paras 1, 3, 17 and 21 of art 2 as well as art 4.
40 ibid ss 1.1, 1.2.1 and 1.1.2 of Annex V.
41 National jurisdictions selected for this article reflect the jurisdic-
tions chosen for a related PhD project: New South Wales, QueÂbec and
Scotland. Among the justifications for this selection are: coverage of a
wide spectrum of hydrological conditions ranging from aridity (New
South Wales) to temperate (QueÂbec) and wet climate (Scotland); cover-
age and comparison of state-of-the-art legal models for water resources
management (Scotland for ecological status protection through the
enactment of the Water Framework Directive: S Hendry `Water Res-
ources and Water Pollution' in F McManus (ed) Environmental Law in
Scotland (Thomson W Green Edinburgh 2007) x6.41±6.42; New South
Wales for water trading and environmental flows: S Postel `The
Forgotten Infrastructure: Safeguarding Freshwater Ecosystems' (2008)
61(2) Journal of International Affairs 75 at 77) with a fragmented and
partly unreformed legal framework (QueÂbec); identifying the impact
of interstate and international law (New South Wales with the Murray±
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155
In Scotland, transposition of the Water Framework
Directive at national level directs the legal regime
towards protection of the water environment.42 The
water environment comprises all surface water,
groundwater and wetlands.43 However, protection of
the water environment appears to extend beyond the
limits of the water environment itself, as protection
includes preventing further deterioration of, and pro-
tecting and enhancing, the status of aquatic ecosys-
tems and, with regard to their water needs, terrestrial
ecosystems and wetlands directly depending on those
aquatic ecosystems.44 This is confirmed by the regime
for water environment pollution control, which aims at
covering interference with the quality of aquatic
ecosystems or terrestrial ecosystems directly depen-
dent on aquatic ecosystems.45
Regulations that ensure the implementation of Scot-
tish water law and the Water Framework Directive
are based on a river basin management process relying
on environmental standards and conditions that
define the ecological and chemical status of the
water environment.46 While chemical status describes
water content in certain toxic and bio-persistent
substances, ecological status more generally describes
the degree to which anthropogenic uses of the water
environment have altered the structure and function-
ing of aquatic plant and animal communities.47 The
environmental standards and conditions serve to
identify current ecological status of surface waters,
groundwaters and wetlands forming the water envi-
ronment, as well as to establish objectives for their
improvement.48
As a result of this regulatory process, aspects of
aquatic ecosystems related to the water environment
are minutely defined and described through typolo-
gies of characteristics related to physico-chemical,
hydrological, morphological, and biological elements.
For example, some characteristics used to describe
the water environment specify: the volume of water
flowing in a river at a particular location and a speci-
fied period in time; the altitude, depth, size or the
basin type of a river or a lake; the temperature, acidity,
pollutant concentration and phosphorous or dissolved
oxygen level in a river or a lake; the particular fauna
and flora existing and expected in a specific river or
Darling Basin and QueÂbec with the Great Lakes±St Lawrence Basin)
through comparison with an relatively `isolated' jurisdiction (Scotland
± with the exception of the Northumbria and Solway basins).
42 S Hendry `Enabling the Framework: the Water Environment and
Water Services (Scotland) Act 2003' (2003) 14 Water Law 16.
43 Water Environment and Water Services (Scotland) Act 2003 ASP3
(WEWS) ss 3, 28. Surface water means inland water, transitional water
and coastal water up to a limit of three miles beyond the coast.
44 ibid s 1(2)(a).
45 ibid s 6(b)(ii).
46 Scottish Executive `Implementing the Water Environment and
Water Services (Scotland) Act 2003: Development of Environmental
Standards and Conditions Policy Statement' (March 2007) available at
http://www.scotland.gov.uk/Resource/Doc/173722/0048451.pdf (last ac-
cessed 11 January 2010).
47 ibid at 4±5.
48 Scotland River Basin District (Surface Water Typology, Environ-
mental Standards, Condition Limits and Groundwater Threshold
Values) Directions 2009 (SRBDD 2009) available at http://www.scotland.
gov.uk/Resource/Doc/298071/0092869.pdf (last accessed 11 January 2010).
156 20 WATER LAW : TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS
lake; the composition, structure, revetment and sur-
face attributes of river beds and riparian zones.49
In New South Wales, both commonwealth and state
legal frameworks also provide extensive regimes for
water resource management that express notions
substantiating the freshwater ecosystem concept.50
One objective of the commonwealth water law is to
ensure that water resources utilization does not
compromise key water resources ecosystem functions
or key water resources environmental outcomes.51 The
notions of water resource and environmental out-
come both closely relate to the freshwater ecosystem
concept. Water resource means surface water or
groundwater, as well as watercourse, lake, wetland or
aquifer whether or not it has water in it, and includes
organisms and ecosystems that contribute to the
physical state and environmental value of the water
resource.52 Environmental outcomes include bio-
diversity, water quality as well as water resource health,
and notably cover maintenance of ecosystem func-
tions by periodic flooding of floodplain wetlands or
mitigation of pollution and limitation of noxious algal
blooms.53 A water-related ecosystem is defined as a
surface water ecosystem or a ground water ecosystem
and its natural components and processes, that
depends on periodic or sustained inundation or
significant inputs of water for its ecological integrity,
and includes an ecosystem associated with a wetland,
a stream and its floodplain, a lake or a body of water
(fresh or saline), a salt marsh, an estuary, a karst system
or a groundwater system.54
The state legal framework for water management
complements the federal regime. It aims at protecting,
enhancing and restoring the whole or part of places
where water occurs naturally, their associated ecosys-
tems, ecological processes, biological diversity and
their water quality.55 To ensure progress toward this
objective, management principles in state water law
enunciate that: rivers, lakes, floodplains and depen-
dent ecosystems including groundwater and wetlands
should be protected and restored; the water quality of
all water sources should be protected or, wherever
possible, enhanced; habitats, animals and plants that
benefit from water or are potentially affected by
regulated activities should be protected, or in the case
of habitats, enhanced.56
Regulations implementing state water law in New
South Wales substantiate notions of water resource-
dependent ecosystems and fundamental ecosystem
water needs through the protection or enhancement
of environmental flows by establishing minimum
49 ibid; Water Environment (Controlled Activities) (Scotland) Regula-
tions 2005 (CAR 2005) No 348 sch 3 `General Binding Rules'.
50 See generally A Gardner, R Bartlett and J Gray Water Resources
Law (LexisNexis Butterworths Chatswood 2009).
51 Water Act 2007 No 137 (Australia) (WA) arts 3(d)(i), 4 (definitions of
overuse, overallocation and environmentally sustainable level of take).
52 ibid art 4.
53 ibid.
54 ibid.
55 Water Management Act 2000 No 92 (New South Wales) (WMA) art
3(b) and dictionary.
56 ibid art 5(2).
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water volumes at reference points in rivers.57 In
particular, the alteration of the natural pattern of en-
vironmental flow by anthropogenic activities is con-
sidered a threat to the survival of protected species,
populations and ecological communities.58 The main-
tenance or enhancement of environmental flows aims
at achieving a series of objectives relevant to water-
dependent ecosystems.59 Expected benefits from en-
vironmental water provisions and water extraction
limits are increased connectivity between river and
floodplain during spring and early summer as well as
maintenance, enhancement, expansion and diversifi-
cation of river bank and river system habitats. Envi-
ronmental flow protection is also linked to the im-
provement of ecological health and ecological pro-
cesses reliant on seasonal patterns of flows, and to the
improvement of native organisms' reproduction by
encouraging migration as well as providing access to
spawning sites, food sources and good water quality,
including correct thermal conditions.
In comparison, a clearly articulated notion akin to that
of freshwater ecosystems has not yet emerged in
QueÂbec law. QueÂbec law mentions but does not
define freshwater ecosystems or equivalent notions
such as aquatic ecosystems and ecosystems associated
with watercourses and bodies of water.60 However, a
synthetic definition of the more general ecosystem
concept has materialized without reference to fresh-
water-related resources.61 Applicable federal statutes
uniformly define ecosystems as dynamic complexes of
animal, plant, microorganism communities and their
non-living environment interacting as a functional
unit.62 References to the structure, characteristics,
57 For example, Water Sharing Plan for the New South Wales Murray
and Lower Darling Regulated Rivers Water Sources 2003 arts 14, 15 and
31±33 [2003±186] (New South Wales) (WSPNSWMD). See also Water
Sharing Plan for the Hunter Unregulated and Alluvial Water Sources
2009 [2009±347] (New South Wales) and Water Sharing Plan for the
Coffs Harbour Area Unregulated and Alluvial Water Sources 2009
[2009±345] (New South Wales) (groundwater dependent ecosystems
have their species composition and natural ecological processes
wholly or partially determined by groundwater).
58 Threatened Species Conservation Act 1995 No 101 (New South
Wales) (TSCA) introductory note to pt 2 and sch.
59 WSPNSWMD (n 57) arts 10±12. Performance indicators to measure
attainment of the objectives are inter alia: change in ecological
condition of the water source and dependent ecosystems; change in
low flow regime; change in moderate to high flow; change in water
quality in the water source; extent to which domestic and stock rights
requirements have been met; extent to which local water utility and
major urban utility requirements have been met; change in economic
benefits derived from water extraction and use.
60 Natural Heritage Conservation Act art 2 RSQ C-61.01 (QueÂbec)
(NHCA), arts 16(2), 17(1), 19(31.76(2)(1), 31.78(2), 31.79(1), 31.85(1)) and
22(2)(46(s)(2.4)) An Act to affirm the Collective Nature of Water
Resources and Provide for Increased Water Resource Protection
RSQ C-6.2 (ACNWR) art 1(2) Groundwater Catchment Regulation
RSQ Q-2 R1.3. According to Order in Council 708-2009 (18 June 2009)
art 19 ACNWR is not yet in force.
61 This process is tributary to federal legislation, as provincial legal
sources do not offer a formal definition. However, an Ecologic
Reference Framework has been developed by the MinisteÁre du
DeÂveloppement Durable, de l'Environnement et des Parcs available at
http://www.mddep.gouv.qc.ca/biodiversite/cadre-ecologique/index.
htm (last accessed 11 January 2010).
62 Canada National Marine Conservation Areas Act SC 2002 18
(CNMCAA) (Canada) art 2(1), Pest Control Products Act SC 2002 28
(PCPA) (Canada) art 2(1) and Canadian Environmental Protection Act
1999 SC 1999 33 (CEPA) (Canada) art 3(1).
 TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS : 20 WATER LAW
functions and special features or sensitive elements of
ecosystems serve to detail the concept further.63 In
particular, the living communities comprising ecosys-
tems command specific attention and are character-
ized through the notion of biological diversity, defined
as the variability among living organisms.64
In this context, references to various sectoral legal
regimes for the management of natural resources and
protection of the environment help to further identify
notions related to the freshwater ecosystem concept
in QueÂbec law. Of specific importance is the notion of
`environment', which covers most waters and consti-
tutes a central concept for the protection and manage-
ment of natural resources in both federal and
provincial legal regimes.65 In particular, the provincial
regime for environment quality protection aims at
preserving unspecified ecological and biological com-
ponents of watercourses and bodies of water through
a delegated regulatory framework by measures applic-
able to lakeshores, riverbanks and floodplains.66 The
fisheries management framework also provides pro-
tection for fish habitat, defined as the spawning
grounds and nursery, rearing, food supply and migra-
tion areas on which fish depend directly or indirectly
in order to carry out their life processes.67
2.3 Summary
The freshwater ecosystem concept is emerging in
international, supranational and national law. Under
international law's influence, consistent definitions for
the core constituent notions of ecosystem and bio-
diversity have materialized in national law. Ecosystem
generally means a dynamic complex of plant, animal
and micro-organism communities and their non-living
environment interacting as a functional unit, while
biodiversity generally means the variability within and
among living organisms and ecosystems.68
However, a clear sectoral definition of ecosystem
generally applicable to water resources management
remains elusive. First, most legal regimes mention but
fail to define the freshwater ecosystem concept.
Secondly, the multiplicity of related notions, such as
aquatic or watercourse ecosystem, water environment,
aquatic habitat or essential water ecosystem compo-
nent and process, tends to blur the contour of the
freshwater ecosystem concept, particularly since these
related notions often co-exist within the same legal
63 CNMCAA (n 62) arts 3, 4, 16(1)(a).
64 CEPA (n 62) art 3(1), PCPA (n 62) art 2(1), NHCA (n 60) art 2,
Sustainable Development Act art 6(l) RSQ D-8.1.1 (QueÂbec) and Act
Respecting the MinisteÁre du DeÂveloppement Durable, de l'Environne-
ment et des Parcs art 11(1) RSQ M-30.001 (QueÂbec).
65 Canadian Environmental Assessment Act art 2(1) SC 1992 37
(Canada), Environment Quality Act art 1 RSQ Q-2 (QueÂbec) and CEPA
(n 62) art 3(1) (environmental quality specifically refers to the health of
ecosystems).
66 Protection Policy for Lakeshores, Riverbanks, Littoral Zones and
Floodplains OC 468-2005 2005 GOQ2 1441.
67 Fisheries Act art 34-42.1 RSC 1985 F-14 (Canada). Analogous
regimes notably exist under the Act Respecting Threatened or
Vulnerable Species RSQ E-12.01 (QueÂbec) and the Act Respecting
the Conservation and Development of Wildlife RSQ C-61.1 (QueÂbec).
68 Convention on Biodiversity (n 26).
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157
order but remain undefined themselves. Thirdly, the
freshwater ecosystem concept may often be a fringe
construct that is ancillary to more fundamental legal
notions and that is used to extend the scope of
management regimes to unforeseen situations. In this
case, the function of the concept requires it to remain
undefined to a certain extent. Finally, when a synthetic
definition is provided, as in the Australian common-
wealth water law, the freshwater ecosystem concept
remains amorphous because it has the `Alice in
Wonderland' quality of including anything desired in
relation to water resources.69
Nonetheless, specific legal regimes provide an outline
for a substantive definition of the freshwater ecosys-
tem concept. In particular, the Water Framework
Directive as transposed in Scottish water law identifies
components of freshwater ecosystems. The various
environmental standards and conditions detailed in
Scottish regulations can be subsumed under four
broad categories related to the physico-chemical,
hydrological, morphological, and biological aspects
of the water environment. The emphasis on environ-
mental flows and on preservation of natural run-off
patterns apparent in New South Wales water law
confirms the essential character of the hydrological
component for the freshwater ecosystem concept.
In this context, the following section provides a review
of scientific literature on freshwater ecosystems in
order to confirm the validity, establish the generality,
solidify the foundations and substantiate the compo-
nents of the freshwater ecosystem concept that emerges
from international, supranational and national water
law.
3 ANALYTICAL FRAMEWORK FOR
FRESHWATER ECOSYSTEMS
Ecosystems became units of scientific study less than a
century ago.70 The theoretical underpinnings of the
ecosystem concept are still debated.71 The concept's
intangibility is notably due to the fact that ecosystem
definitions appear tautological.72 However, ecosystems
acquire definite substance as well as distinct bound-
aries when examined as functional systems reacting to
an external influence.73 In this context, anthropogenic
activity serves as the external pressure through which
freshwater ecosystems materialize to form a core
concept structuring legal frameworks for the protec-
tion and management of water-related natural re-
sources. Because negative anthropogenic impacts are
multiple, a single synthetic definition of freshwater
ecosystem is unworkable. A definition of freshwater
ecosystem serving as an analytical framework for legal
69 Reference to an `Alice in Wonderland' quality is from P Birnie, A
Boyle and C Redgwell International Law and the Environment (3rd edn
Oxford University Press Oxford 2009) 4±6.
70 Millennium Ecosystem Assessment (n 32) 50±51.
71 R O'Neill `Is It Time to Bury the Ecosystem Concept? (With Full
Military Honours, of Course!)' (2001) 82(12) Ecology 3275.
72 W Reiner `Complementary Models for Ecosystems' (1986) 127(1)
The American Naturalist 59.
73 C Jordan `Do Ecosystems Exist?' (1981) 118(2) The American
Naturalist 284.
158 20 WATER LAW : TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS
regimes must inevitably rely on a description of
generic ecosystem components and structure. This
section aims at providing such an analytical descrip-
tion for freshwater ecosystems.
The aquatic environment is complex and diverse. It
includes several distinct ecosystems such as streams,
lakes, ponds, marshes and rivers that have unique
biotic and abiotic (ie related and unrelated to living
things) components and characteristics. This hinders
the formulation of a general and synthetic definition.
However, scientific literature appears to form a con-
sensus on a series of components essential for an
analytical description of freshwater ecosystems.74 The
number and content of the components vary depend-
ing on the approach.75 Nevertheless, it is possible to
subsume them under four analytical categories that
cover the main variables and processes defining fresh-
water ecosystems: hydro-geomorphology (3.1); flow
regime (3.2); biotic assemblage (3.3); and water quality
(3.4).76 These four components are closely correlated
and co-dependent, and do not constitute an immu-
table typology of clearly delineated elements. How-
ever, all anthropogenic activities related to hydro-
geomorphology, flow regime, biotic assemblage or
water quality influence freshwater ecosystem status.
As a result, the selected components of freshwater
ecosystems provide a comprehensive analytical de-
scription that can serve as a basis to identify anthro-
pogenic impacts and the applicable legal frameworks
for their regulation.
Each of the following sub-sections defines one fresh-
water ecosystem component, describes its importance
in terms of ecosystem functioning, illustrates the
consequences of its alteration, and finally exemplifies
law's role in its protection from anthropogenic
impacts.
74 J Baron et al `Meeting Ecological and Societal Needs for
Freshwater' (2002) 12(5) Ecological Applications 1247, J Karr, E Chu
`Sustaining Living Rivers' (2000) 422/423 Hydrobiologia 1 at 5±6; R
Norris, M Thoms `What Is River Health' (1999) 41 Freshwater Biology
197 at 204.
75 For example, according to J Baron et al (n 74) the five drivers
defining freshwater ecosystems are flow regime, thermal and light
characteristics, sediments and organic matter, chemical and nutrient
characteristics, and biotic assemblage. However, J Karr and E Chu (n 74)
identify the five main components as flow regime, energy sources,
habitat structure, water quality, and biotic interactions. Some compo-
nents such as flow regime and biotic assemblage or interactions are
identical. Closer examination of the three other components reveals
parallels and similarities leading to the conclusion that the same
components covered under different guises are water quality, hydro-
morphology, and energy inputs, as determined by R Norris and M
Thoms (n 74).
76 The water quality component is used to cover energy inputs such
as organic nutrients, light and temperature as well as the chemical
composition of water. This results from a choice to omit some aspects
of energy processes in freshwater ecosystems. Important energy
transfers in freshwater ecosystems may depend on the feeding
patterns of insectivore fish, and more generally on food-web
dynamics: see K Mann `The Analysis of Aquatic Ecosystems' in R
Clark, R Wootton (eds) Essays in Hydrobiology Presented to Leslie
Harvey (University of Exeter Exeter 1974) 3. However, these energy
flows are impossible to regulate directly by legal means. As a result,
the energy characteristics of freshwater ecosystems are subsumed
under water quality to the extent that the regulation of anthropogenic
uses can have a potentially significant impact on them.
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3.1 Hydro-geomorphology
Geomorphology, soils and vegetation affect the supply
of water and determine the pathways by which
precipitations reach streams or river channels, lakes
and wetlands. Although they ultimately derive from
precipitation, freshwater flows are contingent on a
combination of surface water, soil water and ground-
water interactions in any given time and place.77 The
run-off, infiltration and evaporation patterns of water
conveyed overland through the hydrological cycle are
naturally influenced by geology, topology, soil texture,
land cover and plant water use.78
Hence, geomorphology dictates local and regional
flow patterns on which freshwater ecosystems de-
pend.79 Lateral and longitudinal connectivity between
floodplain and river channel as well as upstream
reaches and downstream estuaries is essential to
biotic processes.80 The configuration of watersheds
shapes the operation of geomorphic processes and
determines patterns and rates of water, sediment and
nutrient flux.81 It also influences biophysical processes
that affect biotic habitat availability and viability as well
as various biogeochemical functions. In turn, fresh-
water ecosystems reflect, connect and integrate all
physical, chemical and biological processes within
catchments through water flows.82 Because physical
habitats provide the template upon which evolution
forges survival strategies, physical properties of habi-
tats within a freshwater ecosystem determine the type,
abundance and arrangement of biological assem-
blages found there.83
For example, local habitat and biological diversity in
streams and rivers are strongly influenced by landform
77 L Poff et al `The Natural Flow Regime: A Paradigm for River
Conservation and Restoration' (1997) 47(11) BioScience 769 at 771.
78 I Calder Blue Revolution: Integrated Land and Water Resource
Management (Earthscan London 2005) 5±25.
79 L Poff et al `Placing Global Stream Flow Variability in Geographic
and Geomorphic Contexts' (2006) 22 River Research Applications 149
at 162±163; I Vaughan et al `Integrating Ecology with Hydromorphol-
ogy: A Priority for River Science and Management' (2009) 19 Aquatic
Conservation: Marine and Freshwater Ecosystems 113.
80 According to J Ward, K Tockner `Biodiversity: Towards a Unifying
Theme for River Ecology' (2001) 46 Freshwater Biology 807 at 814: `Con-
nectivity refers to the transfer of energy and matter (including biota)
across ecotone boundaries [ie transition zones from one environ-
mental medium to the other, such as the water surface of a lake], with
major implications for biodiversity. We postulate that species diversity
will be maximum at some intermediate level of hydrologic connectiv-
ity between patches within river corridors. At low connectivity, species
diversity should be reduced by the absence of the fluvial dynamics
that sustains a diversity of successional stages within the river corridor,
whereas excessive connectivity will keep all communities in pioneer
stages. [. . . The] effects of connectivity on species richness are deter-
mined by the type and intensity of connectivity and by geomorphic
attributes of the cut-off channels. For example, connectivity may
reduce species diversity if excessive nutrient loading in the river leads
to eutrophication [defined at (n 152)] of connected floodplain water
bodies'. (References omitted.)
81 G Brierley, K Fryirs and V Jain `Landscape connectivity: the
geographic basis of geomorphic applications' (2006) 38(2) Area 165.
82 R Naiman et al `Legitimizing Fluvial Ecosystems as Users of Water:
An Overview' (2002) 30(4) Environmental Management 455 at 462;
D Hannah, J Sadler and P Wood `Ecohydrology and Hydroecology: A
Potential Route Forward?' (2007) 21 Hydrological Processes 3385 at
3387.
83 M Thoms `Variability in Riverine Ecosystems' (2006) 22 River
Research and Application 115.
 TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS : 20 WATER LAW
and land use within surrounding catchments.84 The
area size of the watershed as well as the presence of
row-crop agriculture or wetlands can influence biotic
habitat through river channel dimensions or volumes
of sediment and organic inputs.85 In other cases, local
variables such as near-stream vegetation cover rather
than catchment-wide variables may be more closely
correlated to ecosystem quality as indicated by benthic
(ie water bottom-dwelling) macroinvertebrate commu-
nity composition.86 The width and composition of
riparian vegetation bordering a river can influence the
amount of shading in the stream, the transfer rates of
nutrients, pollutants or woody debris to the river, the
occurrence and rate of predation by terrestrial pre-
dators on aquatic organisms, or the movement of
aquatic insects into the riparian zone.87
Also, river bed morphology as well as sediment size
and stability that respond to flow regime and natural
channel adjustment are key drivers of freshwater eco-
systems.88 Vegetation and algae colonization deter-
mined by the texture and morphology of river beds
and banks actively influence natural modifications in
floodplains and river channels by enhancing flow
resistance and sediment cohesion.89 These correlated
dynamic processes generate a range of freshwater
habitat diversity that include macro-habitats such as
riparian forest in sections of river corridors, meso-
habitats such as natural levees and abandoned
channels in braided rivers, as well as localized micro-
habitats formed of sediments, rocks and dead wood.90
Varied freshwater habitats offer diverse food sources,
shelter from fast currents or predators, reproduction
site for spawning, and nursery for aquatic, amphibian
and terrestrial communities.
84 J Harding et al `Stream Biodiversity: The Ghost of Land Use Past'
(1998) 95 Proceedings of the National Academy of Sciences 14843.
85 C Richards, L Johnson and G Host `Landscape-Scale Influences on
Stream Habitats and Biota' (1996) 53 SI Canadian Journal of Fisheries
and Aquatic Sciences 295.
86 L Sandin `The Relationship between Land-Use, Hydromorphology
and River Biota at Different Spatial and Temporal Scales: A Synthesis of
Seven Case Studies' (2009) 174(1) Fundamental and Applied Limnology
1. Benthic macroinvertebrates are organisms that inhabit the bottom
sediments, debris, logs or filamentous algae of freshwater habitats
such as rivers, streams, ponds and lakes, and measure between 200
and 500 m for at least some part of their life cycle. Benthic macro-
invertebrates are pervasively used to monitor freshwater quality and
ecosystem status because: they are ubiquitous and are affected by en-
vironmental perturbations in many different types of aquatic systems;
the number of benthic macroinvertebrates species offers a response
to a wide spectrum of environmental perturbations; the sedentary
nature of benthic macroinvertebrates allows effective spatial analyses
of pollutants or disturbance effects; benthic macroinvertebrates have
long life cycles compared to other groups, enabling monitoring of
both occasional and regular perturbations: D Rosenberg, V Resh (eds)
Freshwater Biomonitoring and Benthic Macroinvertebrates (Chapman
& Hall New York 1993) 2±6.
87 J Wiens `Riverine Landscapes: Taking Landscape Ecology into the
Water' (2002) 47 Freshwater Biology 501 at 506.
88 S Muhar, M Jungwirth `Habitat Integrity of Running Water ±
Assessment Criteria and their Biological Relevance' (1998) 386 Hydro-
biologia 195 at 197±98.
89 D Corenblit et al `Reciprocal Interactions and Adjustments between
Fluvial Landforms and Vegetation Dynamics in River Corridors: A Review
of Complementary Approaches' (2007) 84 Earth-Science Review 56.
90 J Steiger et al `Hydrogeomorphic Processes Affecting Riparian
Habitat within Alluvial Channel-Floodplain River Systems: A Review for
the Temperate Zone' (2005) 21 River Research and Applications 719 at
721.
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159
In this context, geomorphologic modifications to
watershed conditions alter the functioning of flood-
plains and river channels, the availability of freshwater
habitats as well as the degree of biological diversity. By
changing catchment landscapes, human activities alter
stream ecosystems in multiple ways.91 Modifications to
watershed land-uses such as forest or vegetation clear-
ing, strip mining, cultivated surface increases, agricul-
tural drainage network expansion, surface waterproof-
ing and storm sewer implantation related to urbani-
zation influence run-off patterns as well as erosion
rates and alter floodplains and river channels.92
As a result, the hydro-geomorphologic condition of
watersheds is a fundamental component of freshwater
ecosystems. Legal frameworks regulating anthropo-
genic activities determine the extent and manner in
which the hydro-geomorphology of freshwater eco-
systems can be altered across catchments. The legal
norms that limit anthropogenic impacts on hydro-
geomorphology can play a critical role in controlling
and reducing freshwater ecosystem degradation. For
example, Scottish law regulates land uses that may
affect hydro-geomorphologic features through pan-
ning and zoning instruments.93 QueÂbec law controls
logging and imposes protective perimeters banning
some forestry activities near surface waters.94 New
South Wales law restricts surface mining activities
that may have an impact on water-related natural
resources.95
3.2 Flow regime
Flow regimes are identified as the master variable
among the dynamic processes related to freshwater
ecosystems.96 The notion of flow regime refers to the
physical characteristics of hydrological flows circu-
lating in watersheds.97 Flow regimes are generally
91 R Norris, M Thoms (n 74) 202.
92 D Allan `Landscape and Riverscapes: The Influence of Land Use on
Stream Ecosystems' (2004) 35 Annual Review of Ecology, Evolution, and
Systematics 257 and R Norris, M Thoms (n 74). However, degraded
river channels might host a healthy biota. Moreover, anthropogenic
alterations to hydro-geomorphology are not always the principal
drivers of freshwater ecosystem dynamics. Natural factors may be of
primary importance when human influence is widespread and fairly
uniform across catchments.
93 Planning etc (Scotland) Act 2006 ASP17, Town and Country
Planning (Scotland) Act 1997 C8 (UK), Town and Country Planning
(Hierarchy of Developments) (Scotland) Regulations 2009 SSI 2009/51
(Scotland), Town and Country Planning (Development Management
Procedure) (Scotland) Regulations 2008 SSI 2008/432 (Scotland), Flood
Risk Management (Scotland) Act 2009 ASP6 (Scotland).
94 Forest Act RSQ F-4.1 (QueÂbec) and Regulation Respecting
Standards of Forest Management for Forests in the Domain of the
State RQ F-4.1 R7 (QueÂbec).
95 Mining Act 1992 No 29 (New South Wales), Environmental
Planning and Assessment Act 1979 No 203 (New South Wales) (EPAA),
State Environmental Planning Policy (Major Development) 2005 No 194
(New South Wales), State Environmental Planning Policy (Mining,
Petroleum Production and Extractive Industries) 2007 No 65 (New
South Wales), State Environmental Planning (Permissible Mining) Act
1996 No 27 (New South Wales) and Protection of the Environment
Operations Act 1997 No 156 New South Wales.
96 A Forslund et al `Securing Water for Ecosystems and Human Well-
being: The Importance of Environmental Flows' Report No 24 (SIWI
Stockholm 2009) 5.
97 J A A Jones Global Hydrology: Processes, Resources and Environ-
mental Management (Longman Harlow 1997) 58±119.
160 20 WATER LAW : TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS
described through their magnitude, frequency, tim-
ing, duration, inter-annual variability and rate of
change.98 Flow magnitude refers to the quantity and
velocity of water in a river channel. Variation in flow
magnitude depends on water inputs from precipita-
tions and aquifers, the alternation between dry and
wet periods generating baseflows and peak dis-
charges. The speed at which flow magnitude varies is
described through the rate of change and depends in
part on the intensity and duration of rainfalls as well as
on groundwater resurgence. Regular precipitation
patterns can cause recurrent flooding and minimum
flows at certain times of the year, leading to seasonal
variations described through frequency and timing.
Finally, inter-annual variability refers to flow regimes
that change from year to year owing to irregular
precipitation patterns.
Rivers, lakes and wetlands as well as their fauna and
flora have evolved with and depend on naturally vari-
able flows of freshwater.99 The characteristics of regime
flows are major determinants of physical habitats, which
in turn are major determinants of biotic composi-
tion.100 Each characteristic of freshwater flow regimes
contribute to ecological processes.101 For example,
seasonal flooding is commonly recognized as a key
driver of vegetal species richness in riparian systems.102
Because floods can uproot or bury plants and exert a
selective pressure on them, variations in the magni-
tude of flow regimes are major driving forces in vege-
tation development on river floodplains.103 Recurring
river channel dewatering and extreme low flows
ensure the recruitment of plants and animals resistant
to frequent drought conditions and the exclusion of
species dependent on stable flows.104 The drag force
generated by in-stream current velocity limits under-
water colonization by vegetation but may also prevent
exotic species invasion.105 Inter-annual variability may
affect the survival of migratory fishes, as years with low
river flows reduce access to small upland nursery
streams while years with high flows decrease vulner-
ability to freshwater predators during downstream
98 G Closs, B Downes and A Boulton Freshwater Ecology: A Scientific
Introduction (Blackwell Publishing Oxford 2004) 141.
99 Brisbane Declaration 10th International River Symposium and
International Environmental Flows Conference (3±6 September 2007)
Brisbane Australia available at http://www.unesco.org/water/pdf/bris-
bane_declaration.pdf (last accessed 30 November 2009).
100 S Bunn, A Arthington `Basic Principles and Ecological Conse-
quences of Altered Flow Regimes for Aquatic Biodiversity' (2002) 30(4)
Environmental Management 492.
101 For example see W Monk et al `Flow Variability and Macro-
invertebrate Community Response within Riverine Systems' (2006) 22
River Research and Application 595.
102 B Renofalt, D Merritt and C Nilsson `Connecting Variation in
Vegetation and Stream Flow: The Role of Geomorphic Context in
Vegetation Response to Large Floods along Boreal Rivers' (2007) 44
Journal of Applied Ecology 147.
103 G Bornette et al `A Model of Plant Strategies in Fluvial
Hydrosystems' (2008) 53 Freshwater Biology 1692.
104 S Lake `Ecological Effects of Perturbation by Drought in Flowing
Waters' (2003) 48 Freshwater Biology 1161, and D Merritt et al `Theory,
Methods and Tools for Determining Environmental Flows for Riparian
Vegetation: Riparian Vegetation-Flow Response Guilds' (2010) 55
Freshwater Biology 206.
105 V Nikora `Hydrodynamics of Aquatic Ecosystems: An Interface
between Ecology, Biomechanics and Environmental Fluid Mechanics'
(2010) 26 River Research Application 367.
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migration.106 Finally, tree seed release may be synchro-
nized with regular spring flood recession to ensure
ideal germination conditions in moist soil, while
asynchronous stonefly hatching (ie not happening at
the same time) is adapted to catchments with un-
predictable flood regimes.107
A river's natural flow regime is crucial for determining
ecosystem water requirements. According to the
natural flow paradigm, modification in the natural
flow regime is the main determinant for variation of
ecosystem status.108 For example, changes in the
timing, frequency or duration of floods can eliminate
spawning or migratory cues for fish and reduce access
to spawning or nursery areas, while increased fre-
quency or duration of high flows may displace
velocity-sensitive organisms such as some phytoplank-
ton (ie small vegetal organisms), macroinvertebrates,
young fish and deposited eggs.109 Reduction in
variability of the flow regime can also result in the
permanent stabilization of naturally shifting river
islands and in the build-up of organic nutrients and
sediments in riparian areas, thus favouring coloniza-
tion by strongly competitive vegetation that supplants
local plants and decreases biodiversity.110
In this context, anthropogenic alterations of the natural
flow regime have a critical impact on freshwater eco-
system status. The increasing anthropogenic regula-
tion of natural flows and alteration of biota habitats
through infrastructure development severely affects
the abundance, composition and resilience of fresh-
water species.111 The significance of human interven-
tions on the variability of natural flow regimes is
heightened by dominant traditional water resource
management objectives that seek to dampen natural
variability to attain both constant water supply for
reliable domestic consumption, industrial use, irriga-
tion, navigation and hydropower as well as modera-
tion of extreme water conditions such as floods and
droughts.112 In particular, dam construction and oper-
ation have the most pervasive and damaging effects on
freshwater ecosystems, as dams fragment river chan-
nels and can heavily modify the magnitude, timing, fre-
quency and duration of downstream flow regimes.113
106 R Hilborn et al `Biocomplexity and Fisheries Sustainability' (2003)
100(11) Proceedings of the National Academy of Science of the United
States of America 6564 at 6566.
107 D Lytle, L Poff `Adaptation to Natural Flow Regimes' (2004) 19(2)
Trends in Ecology and Evolution 94.
108 L Poff et al `The Ecological Limits of Hydrologic Alteration
(ELOHA): A New Framework for Developing Regional Environmental
Flow Standards' (2010) 55 Freshwater Biology 147.
109 B Richter et al `How much water does a river need?' (1997) 37
Freshwater Biology 231 at 232.
110 D Gilvear, N Willby `Channel Dynamics and Geomorphic
Variability as Controls on Gravel Bar Vegetation: River Tummel,
Scotland' (2006) 22 River Research Application 457 at 470.
111 S Postel, B Richter River for Life: Managing Water for People and
Nature (Island Press London 2003) 13±36.
112 B Richter et al `Ecologically Sustainable Water Management:
Managing River Flows for Ecological Integrity' (2003) 13(3) Ecological
Applications 206 at 210.
113 M Freeman et al `Flow and Ecological Applications Habitat Effects
on Juvenile Fish Abundance in Natural and Altered Flow Regimes' (2001)
11(1) Ecological Applications 179 and B Richter, G Thomas `Restoring
Environmental Flows by Modifying Dam Operations' (2007) 12(1)
Ecology and Society 12.
 TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS : 20 WATER LAW
Dam reservoirs can trap upstream sediments and
block nutrient flux, while high velocity and variability
in dam releases can cause downstream fine river-bed
sediment scouring and channel armouring through
compaction of surface substrate.114 Water abstraction
and transfers can also significantly degrade ecosys-
tems through vegetation loss and sedimentation
leading to destruction of freshwater habitats.115
As a result, flow regime is a fundamental component
of freshwater ecosystems. Legal frameworks regulating
anthropogenic activities determine the manner in
which the flow regime of freshwater ecosystems may
be altered, thereby limiting the extent of freshwater
ecosystem degradation. Under Scottish law for exam-
ple, compensation water may be provided for water
environment protection when hydropower dams re-
duce the water flow in a watercourse.116 In New South
Wales, the legal framework for water quantity manage-
ment establishes long-term average annual water
extraction limits from water sources.117 QueÂbec law
restricts some inter-basin transfers of water.118
3.3 Biotic assemblage
Biotic assemblages in freshwater ecosystems consist of
multiple interactions and combinations between plant,
animal, insect and microorganism populations inhabit-
ing ecological niches.119 The notion of biotic structure
covered by the biotic assemblage concept refers to
group attributes in species and populations.120 Abun-
dance and condition attributes can indicate popula-
tion density or the percentage of individuals with
diseases and anomalies. Species richness and compo-
sition attributes can indicate the total number of
species or the number and identity of long-lived and
bottom-living species. Biotic processes and functions
derive from biotic structures and refer to operations
such as photosynthesis or rates of organic matter
decay that provide indications on an ecosystem food-
base and help determine its life-supporting capacity.121
114 D Allan Stream Ecology: Structure and Function of Running
Waters (Chapman & Hall London 1995) 308±15.
115 In Australia, more than 50,000 km of streams have been
sedimented by sand, effectively destroying freshwater habitats. In
the Murray-Darling Basin alone, 79 per cent of mean annual flow is
extracted from the system: see S Lake, N Bond `Australian Futures:
Freshwater Ecosystems and Human Water Usage' (2007) 39 Futures 288.
116 Electricity Act 1989 C29 (UK), Water Environment and Water
Services (Scotland) Act 2003 (Consequential Provisions and Modifica-
tions) Order 2006 SSI 2006/1054 (Scotland), WEWS (n 43), CAR 2005
(n 49) and SRBDD 2009 (n 48).
117 WA (n 51), WMA (n 55) and WSPNSWMD (n 57).
118 ACNWR (n 60), Water Resources Preservation Act RSQ P-18.1
(QueÂbec) and International Boundary Waters Treaty Act RSC 1985 I-17
(Canada).
119 K Cummins `Structure and Function of Stream Ecosystems' (1974)
24(11) BioScience 631.
120 For a typology of fish community structures, see J Karr `Biological
Integrity: A Long-Neglected Aspect of Water Resource Management'
(1991) 1(1) Ecological Applications 66 at 71±76.
121 L Sandin, A Solimini `Freshwater Ecosystem Structure±Function
Relationships: From Theory to Application' (2009) 54 Freshwater
Biology 2017; R Young, K J Collier `Contrasting Responses to
Catchment Modification among a Range of Functional and Structural
Indicators of River Ecosystem Health' (2009) 54 Freshwater Biology
2155; G Woodward `Biodiversity, Ecosystem Functioning and Food
Webs in Fresh Waters: Assembling the Jigsaw Puzzle' (2009) 54
Freshwater Biology 2171.
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161
The particular composition of species assemblages has
an impact on freshwater ecosystems. Although fresh-
water ecosystem organisms generally respond to
variation in characteristics of their physical habitat,
this response may be overridden by a variation result-
ing from biological processes determined by preda-
tion or recruitment of new species.122 The presence of
a predatory fish can have a significant cascading effect
on the biota structure through reduction of smaller
predatory fish and invertebrate populations, leading to
large increases of primary consumer bottom-feeding
larvae and ultimately decreasing benthic algae bio-
mass.123 The abundance and composition of riparian
vegetation which contribute significantly to hydro-
morphologic processes and water quality by acting as a
physical trap for sediments and a biological sink for
organic nutrients such as nitrogen and phosphorous
can be significantly altered by animal feeding activ-
ities.124 The selective grazing of large animals such as
moose can shift seasonal riparian forests into conifer-
ous forests.125 Outbreaks of leaf-eating insects can
reduce riparian forest production, thereby changing
water yield, nutrient cycling and water chemistry.126
Beaver dams can significantly modify riparian vegeta-
tion, flow regime and biotic structure by transforming
running waters into standing waters.127
Hence, a modification in biological diversity and in
specific biotic assemblages can alter the functioning
and quality of freshwater ecosystems.128 The disap-
pearance of key species as well as variation in species
richness or other attributes of biotic communities can
affect ecosystem processes.129 For example, a decrease
in plant diversity may induce a reduction in ecosystem
processes linked to biomass production.130 Because
the environmental context is unique and different
ecosystems respond differently to identical changes in
biodiversity, the complex balance of dynamic species
interactions within the biotic assemblage or with the
abiotic environment hampers predictions in ecosys-
tem responses.131 Nonetheless, the overall resilience of
122 S Bunn, P Davies `Biological Processes in Running Waters and
their Implications for the Assessment of Ecological Integrity' (2000)
422/423 Hydrobiologia 61 at 65±66.
123 S Carpenter, J Kitchell and J Hodgson `Cascading Trophic
Interactions and Lake Productivity' (1985) 35(10) BioScience 634.
124 E Tabacchi et al `Development, Maintenance and Role of Riparian
Vegetation in the River Landscape' (1998) 40 Freshwater Biology 497.
125 R Naiman, H DeÂcamps `The Ecology of Interfaces: Riparian Zones'
(1997) 28 Annual Review of Ecology and Systematics 621.
126 ibid.
127 R Naiman, C Johnston and J Kelly `Alteration of North American
Streams by Beavers' (1988) 38 BioScience 753. In QueÂbec, along the
north shore of the St Lawrence river estuary, beaver dam frequency
ranges from 8.6 to 16 per km.
128 A Covich et al `The Role of Biodiversity in the Functioning of
Freshwater and Marine Benthic ecosystems' (2004) 54(8) BioScience 767.
129 D Dudgeon et al `Freshwater Biodiversity: Importance, Threats,
Status and Conservation Challenges' (2006) 81 Biology Review 163 at 173.
130 B Cardinal et al `Impacts of Plant Diversity on Biomass
Production Increase through Time because of Species Complemen-
tarity' (2007) 104(46) Proceedings of the National Academy of Science
of the United States of America 18123.
131 This uncertainty may justify the application of the precautionary
principle to block alterations of freshwater ecosystems. For example,
in Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
(Aus NSW Land and Environment Court), the court refused to
authorize the construction of a road potentially affecting the habitat
162 20 WATER LAW : TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS
freshwater ecosystems to environmental stresses that
depends on high diversity and species functional over-
laps is generally weakened by the reduction in com-
plexity and the simplification of biotic assemblages.132
In this context, the anthropogenic alteration of biotic
assemblages may have a severe impact on freshwater
ecosystems. Anthropogenic threats to freshwater bio-
diversity notably include fisheries over-exploitation,
agricultural pollution, toxic industrial or domestic dis-
charges, habitat destruction or water abstractions.133
For example, riparian vegetation removal, floodplain
encroachment, channel straightening, and hydrologic
alteration due to infrastructure construction decrease
the physical complexity of freshwater habitats and
diminish their biodiversity by changing the composi-
tion of water bird community structures.134 Human
activity tends to reduce variability and homogenize
ecosystems over vast geographic areas, creating uni-
form conditions that decrease local diversity and
favour widespread invasions by alien species.135
Inter-basin water transfers or artificial canals can also
alter natural distribution patterns of aquatic biota and
enhance the spread of pests and diseases, disrupting
water quality and ecological processes.136
As a result, biotic assemblages are fundamental
components of freshwater ecosystems. The legal
norms that limit anthropogenic impacts on biotic
assemblages can play a critical role in controlling and
reducing freshwater ecosystem degradation. Under
Scottish law for example, weirs must not impair the
passage of salmon and sea trout to enable migra-
tion.137 In New South Wales, the environmental plan-
ning framework restricts development activities in
habitats critical for the survival of endangered spe-
cies.138 In QueÂbec, shipping ballast water management
procedures minimize the discharge of alien aquatic
organisms that can reduce the biological diversity of
freshwaters.139
3.4 Water quality
Naturally occurring freshwater is never pure but
contains a wide range of diluted components and
of an endangered frog specie: see D Peterson `Precaution: Principles
and Practice in Australian Environmental and Natural Resource
Management' 50th Annual Australian Agricultural and Resource
Economics Society Conference (8±10 February 2006) Manly New South
Wales Australia.
132 G De Leo, S Levin `The Multifaceted Aspects of Ecosystem
Integrity' (1997) 1(1) Conservation Ecology 3 available at http://
www.ecologyandsociety.org/vol1/iss1/art3/ (last accessed 11 January
2010).
133 C Revenga, Y Kura Status and Trends of Biodiversity of Inland
Water Ecosystems Technical Series No 11 (Secretariat of the Conven-
tion on Biological Diversity Montreal 2003) 17±28.
134 M Sullivan, M Watzin `A Riverscape Perspective on Habitat
Associations among Riverine Bird Assemblages in the Lake Champlain
Basin, USA' (2007) 22 Landscape Ecology 1169.
135 K Gido, J Brown `Invasion of North American Drainages by Alien
Fish Species' (1999) 42 Freshwater Biology 387.
136 S Bunn, A Arthington (n 100) at 501.
137 CAR 2005 (n 49).
138 TSCA (n 58), EPAA (n 95) and Environment Protection and
Biodiversity Conservation Act 1999 No 91 (Australia).
139 Ballast Water Control and Management Regulations SOR/2006-
129 (Canada).
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suspended substances.140 Rainfall and run-off dislodge
soil particles that are carried away in water flows along
dissolved minerals and organic matter present at the
soil surface or in the land substrate finally to reach
rivers and lakes.141 In general, any physical, chemical
or biological property that affects water composition
represents a water quality variable.
Quality level and water components play an important
role in freshwater ecosystems. Water quality levels
reflect water composition in mineral and chemical
components, in floating particle concentrations ex-
pressed through turbidity, as well as in dissolved gases
such as oxygen or carbon dioxide that influence
freshwater acidity levels.142 Light and temperature
influenced by climatic variables such as cloud cover
and wind speed also play a key role in water quality.143
Water temperature regulates oxygen concentrations,
organic metabolisms and associated life processes.
The thermal regime influences organism fitness and
the distribution of species according to water depth
and seasonal variation.144 In lakes particularly, the
absorption of solar energy and its dissipation as heat
are critical to the development of thermal structures
and water circulation patterns. These characteristics
in turn influence nutrient cycling, distribution of
dissolved gases and biota as well as organism adap-
tation.
Modification in water quality can alter freshwater eco-
system functions and processes. Aquatic ecosystem
vulnerability to chemical input varies depending on
the chemical's properties, the discharge concentration,
the discharge duration or frequency, and the discharge
location.145 The biological consequences of chemical
variations are difficult to determine precisely because
multiple freshwater ecosystem processes involve com-
plex interactions and because species adapt to new
conditions.146 For example, trout exposure to ammonia
and acidification may result in increased growth and
energy efficiency.147 However, alterations in light and
temperature have clearer impacts that fundamentally
affect freshwater ecosystems.148 For example, temp-
erature increases in lakes can modify the equilibrium
in predator-herbivore-algae dynamics and result in
specie extinction due to modified metabolic rates or
140 M Dobson, C Frid (n 2) at 9±14.
141 C Boyle Water Quality: An Introduction (Kluwer Academic
Publishers Norwell 2000) 2.
142 V Novotny, H Olem Water Quality: Prevention, Identification and
Management of Diffuse Pollution (Van Nostrand Reinhold New York
1994). There are hundreds of water quality indicators, each with its
purpose and relevance to specific water uses.
143 On the inclusion of energy parameters under the water quality
component, see note 76.
144 J Baron et al (n 74) 1252.
145 G Rand, P Wells and L McCarty `Introduction to Aquatic
Toxicology' in G Rand (ed) Fundamentals of Aquatic Toxicology:
Effects, Environmental Fate, and Risk Assessment (Taylor & Francis
London 1995) 8.
146 D Allan (n 114) 36.
147 I Morgan, G McDonald and C Wood `The Cost of Living for
Freshwater Fish in a Warmer, More Polluted World' (2001) 7 Global
Change Biology 345.
148 G Petts `A Perspective on the Abiotic Processes Sustaining the
Ecological Integrity of Running Waters' (2000) 422/423 Hydrobiologia
15.
 TREMBLAY : A FRAMEWORK FOR LEGAL REGIMES APPLICABLE TO FRESHWATER ECOSYSTEMS : 20 WATER LAW 163

shifts in algae community structure towards less edible freshwater-related natural resources. Yet, the fresh-
species.149 water ecosystem concept is still emerging in interna-
tional, supranational and national law. An operational
Hence, the anthropogenic alteration of water quality
definition applicable to water resources management
may severely impact freshwater ecosystems. Human
remains elusive in most legal regimes. Nevertheless,
land uses directly affect surface water quality.150
specific legal frameworks outline essential compo-
Urbanization and agriculture can modify stream
nents of freshwater ecosystems. The validity, gener-
temperature and dissolved oxygen concentrations,
ality and robustness of the outline provided by
changing species behaviour and population struc-
water law is confirmed by scientific literature. Hydro-
tures.151 Increases of phosphorous and nitrogen from
geomorphology, flow regime, biotic assemblage and
agricultural sources lead to lake eutrophication and
water quality are the four essential analytical com-
toxic algae blooms that can eliminate fish.152 Run-offs
ponents that define freshwater ecosystems and de-
from urbanized areas generate pollution from toxic
lineate the scope of legal frameworks relevant to water
substance, heavy metals and pharmaceuticals that
resources management. Legal regimes regulating hu-
cause mortality and reproductive dysfunctions in
man activities that have an impact on one or more of
freshwater species.
these four components must be included in the
As a result, water quality is a fundamental component analysis of legal framework applicable to freshwater
of freshwater ecosystems. Legal frameworks regulating ecosystems.156
anthropogenic activities determine the extent and
For example, point source domestic, industrial or
manner in which the water quality of freshwater
mining pollution from active discharge or passive
ecosystems may be altered. The legal norms that limit
leakage as well as diffuse pollution from agricultural
anthropogenic impacts on water quality can play a
activities such as fertilizer or pesticide spreading have
critical role in controlling and reducing freshwater
a direct impact on water quality and biotic assemblage
ecosystem degradation. For example, Scottish law
in freshwater ecosystems. Land uses such as forestry,
provides point source emission and environmental
agriculture, road development, urbanization or other
standards for industrial pollutant discharges affecting
alterations of land surface or run-off and sediment
water resources.153 In New South Wales, the use of
transport processes in watersheds are directly related
pesticide is regulated to limit contamination of
to the hydro-geomorphology of freshwater ecosys-
animals, plants and water.154 QueÂbec law restricts
tems. Damming, drainage of wetlands, dredging,
manure and fertilizer spreading for agricultural pur-
navigation and water diversions or abstractions alter
poses based on phosphorus content per surface area
the flow regime of freshwater ecosystems through
ratios to protect freshwaters from eutrophication.155
modifications of river discharge, stream channel, lake
margin or riparian erosion rate. Finally, aquaculture,
4 CONCLUSION introduction of exotic species, fishing, poaching or
harvesting of freshwater species impact the biotic
Given current trends in unsustainable natural re-
assemblage of freshwater ecosystems.
sources exploitation and widespread environmental
degradation, improved legal protection of water Hence, hydro-geomorphology, flow regime, biotic
resources is essential. The notion of freshwater eco- assemblage and water quality constitute the essential
system is the most appropriate conceptual basis for substantive components defining and delineating
water management because it comprehensively re- freshwater ecosystems through which the identifica-
flects and integrates anthropogenic activities affecting tion and analysis of the applicable legal regimes
become possible. The analytical framework developed
in this article allows for a comprehensive study of legal
rules relevant to freshwater-related resources in
149 B Beisner, E McCauley and F Wrona `The Influence of various jurisdictions. In turn, the definition of fresh-
Temperature and Food Chain Length on plankton predator-prey water ecosystems can structure legal frameworks to
dynamics' (1997) 54(3) Canadian Journal of Fisheries and Aquatic improve water resources management. The reform and
Sciences 586.
integration of fragmented and sectoral legal regimes
150 S Tong, W Chen `Modeling the Relationship between Land Use
and Surface Water Quality' (2002) 66 Journal of Environmental can be guided by the necessity to take into account the
Management 377. four components of freshwater ecosystems.
151 B Helms, J Schoonover and J Feminella `Assessing Influences of
Hydrology, Physicochemistry, and Habitat on Stream Fish Assemblages
across a Changing Landscape' (2009) 45(1) Journal of the American
Water Resources Association 157.
152 B Moss Ecology of Fresh Waters: Man and Medium, Past to Future
(3rd edn Blackwell Publishing Oxford 1998) 235±38. Eutrophication is
the increase of nutrient concentrations in freshwater ecosystems that
leads to an increase in organic productivity. Extreme eutrophication
may lead to the reduction of oxygen content in water (anoxia) and
ultimately to a severe reduction of diversity in biota assemblage.
153 Pollution Prevention and Control Act 1999 c24 (UK), Pollution
Prevention and Control (Scotland) Regulations 2000 SSI 2000/323 and
CAR 2005 (n 49).
154 Pesticides Act 1999 No 80 (New South Wales) and Pesticides
Regulation 2009 No 417 (New South Wales).
155 Agricultural Operations Regulation OC 695-2002 GO2 2643
(QueÂbec). 156 See table in appendix.

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APPENDIX 157

Table: Examples of responses to anthropogenic pressures on freshwater ecosystem components

Anthropogenic pressure Freshwater ecosystem component Potential mechanism for regulation

Logging & forestry Land-use planning & zoning

Strip mining Protective perimeters
Land-use change Env. impact assessments
Urbanization Preliminary authorizations
Road development Standards of practice
Sewer implantation HYDRO-GEOMORPHOLOGY Revocable & conditional permits
Wetland drainage Best-available technology
Agricultural drainage Speed limits for vehicles
Stock grazing Penal sanctions
Floodplain encroachments Private recourses
Dredging
Navigation
± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ±
Dams & impoundments Env. impact assessments
Water abstractions Preliminary authorizations
Inter-basin transfers Revocable & conditional permits
Mine dewatering Dam operation planning
River-bed buildings FLOW REGIME Individual restrictions & global caps on abstractions
Dredging Standards of practice
Wetland drainage Best-available technology
Agricultural drainage Protective perimeters
Stormwater discharges Land-use planning & zoning
Floodplain encroachments Penal sanctions
Private recourses
± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ±
Fishing Revocable & conditional permits
Hunting Individual & global quotas
Poaching Habitat preserves
Aquaculture Interdictions
Navigation BIOTIC ASSEMBLAGE Import bans
Artificial canals Standards of practice
Inter-basin transfers Mandatory formation
Pest control activities Env. impact assessments
Preliminary authorizations
Penal sanctions
Private recourses
± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ± ±
Energy production Env. impact assessments
Mining leachate Preliminary authorizations
Industrial releases Revocable & conditional permits
Toxic residue storages Env. quality standards
Sewer discharges Individual & global caps
Livestock production WATER QUALITY Interdictions
Aquaculture Monitoring systems
Landfill disposal Protective perimeters
Fertilizer spreading Habitat preserves
Pesticide usage Best available technology
Atmospheric pollution Standards of practice
Dredging Penal sanctions
Navigation Private recourses

157 Similarly, see Working Group 2.1 ± IMPRESS `Analysis of Pressures and Impacts Guidance document No 3 Common Implementation Strategy
for the Water Framework Directive (2000/60/EC)' (European Communities Luxembourg 2003) 28±31 and R Abell, D Allan and B Lehner `Unlocking
the Potential of Protected Areas for Freshwaters' (2007) 134 Biological Conservation 48 at 49.

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